School Bus Safety

Posted in Injury Law, News & Events

Now that school is back in session and children and parents alike have become accustomed to the daily routine of school, it’s no time to let down your guard for school bus safety.   Over 50% of the injuries that occur while getting on and off the school bus are to children 5 to 7 years old. According to the School Transportation News, about 16 children are fatally injured as pedestrians in the loading and unloading zone around school buses annually.  Although that is an improvement from the 75 fatalities in 1975, the only acceptable number is zero

In order to accomplish this goal it is incumbent upon school districts and school bus transportation providers to have an overall comprehensive approach to pupil transportation safety.  School administrators, transportation supervisors, teachers and bus drivers must be properly informed and trained to practice all bus safety procedures.  Students must be trained in all aspects of bus transportation safety. It’s so important that New Jersey law requires that District Boards of Education provide public school students with safety education programs.

Fortunately there are many great sources of information on student transportation that are easily accessible on the internet to all of us.  Some, to name a few are:

1. The National Highway Safety Administration

2. The National Safety Council

3.  The National Association For Pupil Transportation

 

As National School Bus Safety Week has come to an end, we need to make sure our children are safe throughout the year.  Learn and make sure that your district is following all the bus safety rules.

Personal Injury Practice Tip Beware: The “internal appeals” Process For PIP May Be Changing

Posted in Injury Law, News & Events

The concept of “internal appeals” in PIP is not new, and it is a subject of which lawyers actively practicing injury law in New Jersey should be well aware.   However, if DOBI gets its way, the framework governing the internal appeals process may be soon changing rather dramatically. As such, if your practice includes motor vehicle accident claims, this is an issue to which you should be paying attention! By way of background, let’s first look briefly at the present form of the regulations governing the internal appeals process.

N.J.A.C. 11:3-4.9(a)(1) currently only grants “authority” to the insurers to require medical providers to comply with all requirements of their Decision Point Review (“DPR”) plans as a condition of taking an assignment of benefits from their patient (your client).  N.J.A.C. 11:3-4.7(c)(6), requires that each insurer’s DPR plan contain an internal appeals process, but does not mandate that the DPR plans require exhaustion of this appeals process as a prerequisite to arbitration.  However, as you may or may not be aware, DOBI published a great many proposed changes to the PIP regulations in August 2011.  Appeals have been filed with regard to these proposed changes, and arguments on the issues raised are currently pending before the courts.  However, a substantial change has been proposed to the procedure outlined above, which may have some rather dramatic implications for your clients and your practiceIn this regard, I want to high-light 4 key changes which are currently “proposed:

 

1.         As part of DOBI’s purported desire to institute a uniform appeals process, the internal appeals mechanism is slated to become mandatory rather than permissive.  Further, under the proposal, appeals concerning adverse “treatment” decisions must be filed within 30 days of the decision date!  Arguably, the practical effect of this provision is to fashion a very short statute of limitations governing disputes over the denials of care by a PIP carrier.  This is a very substantial issue, and one of which all P.I. practitioners should be acutely aware.  Please note, the proposal deems that “medical necessity” decisions constitute “treatment” determinations;

2.         If the 30 day deadline for filing a “treatment” appeal is missed, the proposal builds in one opportunity to seek an “additional decision point review” for the “treatment or test which was at issue”.  While this essentially provides a “second bite” at the appeals apple, the potential for a very short filing deadline continues to loom large;

3.         The new proposed regulations authorize both the insured and the provider to initiate the appeals process.  This is significant, as appeals previously had to be filed by the provider; and,

4.         The new proposed regulations state that if a PIP arbitration is ultimately filed based upon the denial of an internal appeal, the provider or insured will be limited to arguments and information which were submitted with the internal appeal.

 

So, what does all of this mean for you and your practice?

  • First, be aware!  While these changes are currently in the proposal stage, they may well be instituted and become a fact of life for your practice.
  • Second, if implemented these changes will mandate that you, as the lawyer, will need to pay attention to the “DPR” notices which you regularly receive from your client’s PIP carriers.  Where treatment has been denied, you should be prepared to take prompt action to protect your clients’ rights up to and possibly including filing for the internal appeal yourself.
  • Third, any lawyer considering filing such an appeal must take care to cover all of the potential bases in the arguments raised, as the information in this appeal would govern and limit the arguments which may be raised in a subsequent arbitration.
  • Finally, given each of the points outlined above, the best approach for any lawyer who lacks an intimate familiarity with the specifics of the world of PIP may well be to establish a referral relationship with an experienced PIP attorney and promptly refer any and all such disputes to them!

 

Safety Issues- Proper Exterior Lighting

Posted in Injury Law

Now that the summer is over and autumn is upon us, it is important to remind everyone of an important safety issue: proper exterior lighting.  As the sun sets earlier and earlier, you must remember to adjust the lights outside of your homes and businesses to protect yourselves and visitors.  An errant garden hose leftover from those scorching summer days can turn into a major trip hazard for someone walking in the dark.  The problem will be even worse when Daylight Saving Time ends and there is even less sunlight in the late afternoon hours.  To eliminate this problem, change timers on any outside lights to ensure that there is proper lighting in all areas where people may be walking.  A simple trip and fall on a sidewalk or driveway can have disastrous consequences.

While we are on the subject of pedestrian safety, it’s also important to eliminate any known hazards or dangerous conditions on your property that could threaten your safety or the safety of someone who visits your property.  In a recent case, a woman was cleaning up following a private party at an Elks Lodge.  The woman was walking up a staircase.  As she came to the top of the stairwell, her foot caught on stair treading that was not properly secured to the landing.  She tripped and fell down 17 hardwood steps, fracturing her skull and suffering lumbar disc herniations at two levels.  Her medical expenses were more than $360,000.  The woman and her husband sued the lodge, alleging that it failed to fix a known dangerous condition.  The lawsuit also alleged that the stairway lacked a banister that extended over the landing, in violation of the applicable building code.  The plaintiff had been carrying a basket in one hand and a carafe in the other when she fell, and, not surprisingly, the defense claimed that the plaintiff was carrying too many items at the time of the fall.  The defense also claimed that the plaintiff should have been familiar with the conditions at the lodge because she was a member.  The jury awarded the plaintiff $2.84 million, apportioning liability at 60% to the defendant and 40% to the plaintiff.

That is just one example of a severe injury that resulted from a fall due to a dangerous condition on someone’s property.  Here are some tips to make your property safer for visitors.

Always make sure that doorways and staircases are well-light and free of debris.  Keep rugs and carpets in good repair.  If the carpet is bunching up or is tattered, replace it.  If it’s raining, you may want to put a mat inside on tile, wood, or concrete floors so that visitors do not slip and fall on water that is tracked into your home or business.  Make sure the mat stays down and does not move.  Otherwise, someone could slip and fall as a result of the mat.  Clean up any spills immediately.  If you notice water dripping down from gutters or the roof, fix the problem so that the area below does not become slippery or icy.  If there are any dangerous conditions on your property, put bright warning signs and cones around them and make sure to warn your guests.  Just because you know about that step-down into your sunken living room doesn’t mean your guest will remember it while he’s carrying a plate of food and a glass of wine.  Above all else, use common sense.  If does not seem safe, it probably isn’t.

Here at Stark & Stark we represent people who are hurt in accidents every single day.  We are here to help.  If you or someone you know has been injured in a trip and fall, slip and fall, or some other type of accident, call me right away.  I can help you understand your rights and assess whether you have a valid legal claim.  Hopefully, you will never need us, but if you do, you can rest assured that we have the knowledge and experience to work hard for you and protect your rights.

Link Shown Between Traumatic Brain Injury in Childhood and Behavioral Issues

Posted in Injury Law, Medical Malpractice, News & Events

A new study published in the September, 2014 edition of the journal “PLOS ONE”, offers further support for the existence of a connection between suffering a brain injury at a young age and a variety of serious problems, including behavioral problems.  While studies have long noted a variety of long term consequences, including variations in how a person’s gender may impact upon the effects manifested from traumatic brain injury (TBI), this new study was particularly focused upon TBI in young persons in an effort to identify whether the person’s age, or a combination of age and gender, may impact the manifested effects of TBI.

The researchers examined data collected from over 9,000 students enrolled in grades 7-12 and focused on persons who had suffered a head injury which resulted in an overnight hospitalization or a period of unconsciousness of at least five minutes.  Given the recent media attention to TBI lately and the apparent link between participation in contact sport and TBI, it is perhaps not surprising that the researchers found “team sports” as the most common reported cause of TBI amongst the study’s participants.

The results reportedly “indicate that adolescents with TBI are vulnerable to a range of psychological and behavioral harms that co-occur with their history of a TBI,” such as suicidal ideation, smoking, and drug use. Due to limitations on the study, including the fact that the data reviewed was limited to the participants’ self-report, the researchers were not able to gather meaningful data on the severity of the TBIs suffered by the study’s subjects.  As such, the potential impact of TBI severity remains an open question with regard to the results of this particular study.

Each year millions of people are subjected to brain trauma suffered in accidents of varying kings, including car accidents, bicycle accidents and other incidents.  TBI can produce devastating life impacts.  Personality changes, impaired memory, violent outbursts, sleep disturbances, and other life changing consequences are frequently seen in the victims of TBI.  If you or a loved one have been involved in an accident and have noticed such effects, we urge you to seek medical attention and the assistance of an attorney.

Medicare Set Asides – Are They Required In Third Party Liability Claims?

Posted in Injury Law, News & Events

Medicare Set Aside trusts (“MSA”) have been a part of the worker’s compensation world for some time now.  However, the issue of whether MSAs are required in the context of 3rd party liability claims remains a bit of an open question.  The lack of clear rules on this subject has been a source of complaint for attorneys and insurance representatives alike.  The terms of the governing statutes impose a duty to “protect Medicare’s interest” upon the parties, but does so in a very general manner.  And, as one would expect, this has lead to varying interpretations of what must be done to “protect” or otherwise account for Medicare’s “interests” when the injured party is a Medicare beneficiary.

Medicare itself has not provided clear guidance on the subject.  And, unfortunately, neither have the courts.  Generally speaking, practitioners can only expect courts to make a determination as to whether an MSA is required in a liability case in a narrow range of circumstances.  Most notably, where the parties agree that it is required, but have been unable to secure Medicare’s approval for their proposed MSA arrangement, or where the parties have reached a proposed settlement, but cannot agree on whether an MSA is required.  New Jersey has issued one published opinion holding that the directives and regulations governing MSA’s in workers’ compensation claims are also applicable in the context of liability claims.  See Hinsinger v. Showboat Atlantic City, 420 N.J. Super. 15, 18 A.3d 229 (Law Div. (Ocean County) 2011).  However, as this decision was issued at the trial court level, it does not constitute binding precedent for other trial courts.

In 2012 and 2013 Medicare had issues a notice of proposed rulemaking on the subject which would have provided more clearly defined guidelines.  However, due to the sweeping scope of the proposed rule it was challenged and, at this time, the word is that the proposed rule has been withdrawn.  The withdrawal of the proposed rule, however, does not eliminate the statutory obligation to “protect Medicare’s interest”, or the penalties which may apply if one fails to do so.  So, are MSAs required in 3rd party liability claims?  The best answer which can be given at this time is “it depends”. For some time now, cautious practitioners have been fashioning MSAs, or at least utilizing 3rd party specialists conduct a review of the case to determine whether one is needed.  Given the stiff penalties which Medicare has the right to impose, the best approach, at least for now, may well be to chart the cautious course if your client is a Medicare beneficiary or is likely to become eligible for Medicare in the next 3 years and there is a reasonable expectation of future, related medical expenses which Medicare may be called upon to pay.

Hearing Loss from Ongoing Exposure to Excessive Noise

Posted in Workers' Compensation

Anyone who saw the Super Bowl last January witnessed the impact the crowd noise had on the players on the field.  The ‘12th Man’, as the fans in Seattle are known, has become famous for the extreme noise levels.   The problem is, exposure to this type of excessive noise can cause permanent hearing loss.

A recent article on www.huffingtonpost.com , “Seahawks Fans Seek Roar Record as Experts Warn of Health Risks”, discusses the hearing risk posed by exposure to noise levels, often reaching up to 132 decibels. The article cites experts who indicate that hearing loss is caused by both noise level and duration and that exposure to these noise levels could cause permanent hearing damage.

In addition, the National Acoustic Laboratories in Australia, found that the noise of fitness classes at the gym are almost as high as a jet engine.   Finding that Circuit and Spin classes had noise levels as high as 94 decibels.    This would impact the instructors and gym employees even more than the gym members, as the overall hours exposed is significantly higher.

To prove hearing loss from an occupational exposure, the loss must be to both ears.   If you do not suffer enough of a loss in one ear, the hearing loss will not qualify for benefits in a New Jersey Workers’ Compensation claim.  The standard is different for hearing loss caused by a single incident, such as a gunshot or explosion.   Hearing loss for a specific accident can be to one ear, hearing loss from ongoing exposure needs to affect both ears.

Stadium workers, Gym employees, Factory workers, heavy equipment operators, firefighters and first responders, and many other occupations are exposed to high noise levels that could result in an Occupational Hearing Loss.   If you feel that you’ve suffered a work related hearing loss, it is important to know that you only have 2 years from the last date of exposure to file a workers’ compensation claim.   If you’ve undergone audiometric testing that shows a hearing loss and you’ve been exposed to high noise levels at work, you may very well have a viable workers’ compensation claim.

I was Laid off from a Casino, Will that Effect My Workers’ Compensation Case?

Posted in Injury Law, News & Events

The closing of Revel and Showboat  casinos over the Labor Day weekend will not have an effect on an injured worker who had a valid workers’ compensation claim before the casino closed.  In fact, if you were injured while you were working for one of these casinos, and reported the injury but never filed a formal workers’ compensation claim petitioner, you can certainly contact an attorney and do so now, even though the casino has closed.  The Associated Press reports that the closing of the Showboat Casino and the Revel Casino over the Labor Day weekend caused approximately 5000 employees to lose their jobs.  Those with valid workers’ compensation claims will not lose their claims because of the casino closings.  Nor will filing a claim for unemployment benefits because of the closings effect an injured worker entitled to workers’ compensation benefits.  Keep in mind though that an injured worker cannot receive unemployment benefits and weekly workers compensation benefits at the same time.  The same rules apply to those workers employed by Trump Plaza who are expected to lose their jobs when that casino closes on September 16th.

I recently met with an employee of the Revel casino who was getting laid off on September 1, 2014.  She was injured in May of 2014 and had an ongoing workers’ compensation case where the employer was honoring her light duty restrictions and paying for 100% of her injury related medical care.  She wanted to know if the fact that Revel Casino was shutting down would stop her workers’ compensation benefits.  I was pleased to be able to tell her that her workers’ compensation benefits would continue after her lay off on September 1, 2014.  In fact, since she now has no employer to accommodate her light duty restrictions, she will be paid weekly benefits by the workers’ compensation carrier until the authorized workers’ compensation doctor releases her for full duty.  And at that point she will still be eligible for a partial permanency settlement through the workers’ compensation court, even if she returns to another place of employment.  Workers’ compensation benefits that were in effect on the date of an injury continue and remain intact through lay-offs and firings.  These benefits include weekly temporary disability benefits, medical benefits and partial or total disability benefits through the workers’ compensation system.

If you have any questions regarding your right to ongoing workers’ compensation benefits please contact Stark and Stark.

Stark & Stark and The Meadows Frozen Custard are Proud to Honor Fallen Soldier

Posted in News & Events

Although I am an Attorney at Stark &  Stark in the Personal Injury Department by day, I am also co-owner of a frozen custard store, The Meadows, which is located on Route 130 in Delran, New Jersey.  On Sunday, October 5, 2014, these two organizations, along with many others, are joining together to hold a fundraiser to honor a fallen local soldier, Staff Sergeant Michael Bruzgis.

As an attorney and business owner, I am fortunate enough to have an ability to give back.  Similarly, as a business owner, there are opportunities which come along that provide a chance to do something special for an individual or an organization.  This event is exactly the type of thing that I had hoped to be part of when I think of ways I can give back to the community.

Staff Sergeant Michael Bruzgis was a true American hero. He was the individual who provided people like me the ability to do what we do on a daily basis.  While I work on my career as an attorney or starting a business, it is people like Staff Sergeant Bruzgis who fight daily to protect our country and our freedom.  He served four (4) tours of duty, two (2) in Iraq and two (2) in Afghanistan.  Ironically, these were not consecutive.  Instead, after his first enlistment which included two (2) tours in Iraq, he separated from the military.  However, he soon realized that he was an American soldier through and through and he subsequently re-enlisted.  The second time he spent two (2) tours of duty in Afghanistan.  During his time in the military, he served as troop leader of his group.  In the four years he served, he never lost one of his fellow soldiers.  Unfortunately, during his fourth and final tour, an IED exploded causing him to suffer severe injuries which ultimately ended his military career and eventually his life.  He received a Bronze Star, and will be receiving both a Purple Heart and Silver Star posthumously.

This Sunday, Stark &  Stark, along with The Meadows, will be honoring Staff Sergeant Bruzgis with a flag dedication and ceremony presented by VFW Post 3020.  A 24” x 18” flag will be raised atop a 70” flag pole.  The event will be from 12:00-3:00 PM with the flag ceremony beginning at 1:30 PM. All proceeds raised from the event will then be donated directly to The Wounded Warrior Project, an organization which assisted Staff Sergeant Michael Bruzgis.  Following the flag ceremony, Throwbacks Bar & Grill, located a block away from The Meadows on Route 130, will be holding a “Wing Fling”, all you can eat wings and soft drinks, for two hours for $10, and the proceeds will be donated to The Wounded Warrior Project.

This will be a great opportunity for those of us who have not served in the armed forces to come out and show appreciation for those who have and specifically those that have made the ultimate sacrifice so that we all may live the lives we live.  In addition to the flag ceremony, there will be a live DJ on hand and a face painter for children.  I encourage everyone to come out to help raise awareness for the Wounded Warrior Project and to honor Staff Sergeant Bruzgis.  I hope to see you there.

Thoughts for Motorcycle Riders in Fall

Posted in Motorcycle Injury

Fall is here. The leaves are just starting to change and we had our first rainy day in a long time. The days are still warm and inviting to riders to get out and enjoy a nice ride, but with autumn comes new hazards to motorcyclists. Obviously, wet leaves, slippery roads and objects or potholes hidden by fallen leaves are a danger to us. But, something we don’t necessarily consider is the change in lighting conditions. As the days get shorter riders should be aware that low light presents an additional hazard. Not only are bikers harder to see but we will have a more difficult time seeing potential hazards in or on the road ahead. For those of us who love taking a ride after work to wind down please be particularly mindful of this since we probably do not realize how dim the lighting actually is or how quickly it gets dimmer.

The best option is to ride more slowly than you would in bright daylight. This will give you more time to see and identify potential hazards and will give other drivers a greater opportunity to see and identify you. You also will give yourself more time to react should something happen.   Remind yourself before you ride of the change in daylight conditions and adjust your driving accordingly. If you are unfamiliar with the road ahead, or if you know there are curves or hills coming up, reduce your speed so you can clearly identify any hazards common in autumn and low light conditions and give yourself plenty of time to avoid them.

You might also consider wearing more visible clothing and helmets. I understand that white helmets are much more visible than black and a lime green or orange reflective jacket will make you much more apparent to other drivers.

Finally, remember that the sun rises later and sets earlier than it has the last few months. As the sun gets lower in the sky all drivers have problems with sun glare. Be particularly alert for this in the mornings and evenings as you and the vehicles around you may suddenly round a curve and find yourself looking directly into the sun. Drivers react differently to this sudden blinding glare and you want to be sure to give yourself extra room to maneuver should someone hit their brakes or unexpectedly swerve out of their lane of travel due to the blinding sun.

A great reason to live in this area is the change of seasons, but with each new season comes new hazards to contend with. Please add some of these thoughts to your pre-ride mental checklist and be safe.  If you have have any questions, please contact us at Stark & Stark.

Can Your Employer’s Insurance Company Send You to an “Independent Medical Exam” While You Are Still Under Insurance Company Physician Care?

Posted in Injury Law

This issue arises more and more in our practice. Insurance companies and self-insured employers frequently schedule these “IME”s during the course of authorized treatment, often while the injured employee is still out of work and receiving temporary disability payments. Sometimes the reason for the exam is quite legitimate. If a worker has sustained a serious injury requiring surgery and is not making progress post-surgery, it is often desirable to have another expert physician in the same specialty as the current treating physician examine the worker to possibly suggest another approach to the injury which might improve the worker’s condition and return him or her to work. In this situation the worker’s attorney often will make a request for such an exam. Another situation is when a complicated surgery is recommended; the worker in this situation often will ask for a second opinion before proceeding to surgery. Exams in both of these situations are often needed.

Unfortunately, we are seeing an increasing use of the IME for a negative purpose; to “cut off” the worker from treatment which is still needed. To cite an extreme example, a worker injured in a specific incident was recovering from a very serious spinal surgery, was receiving post-surgical therapy, and was also recommended for surgery to another part of the body. The treating doctors were authorized and paid by the insurance company. The worker was also receiving temporary disability payments. The insurance carrier then sent the worker to a physician of its choosing for an IME. That IME physician examined the worker and wrote a report expressing the opinion that the surgery and treatment were not related to a work incident, that physical therapy should stop, and that the worker should be returned to work without restrictions. There was no real evidence justifying that opinion. Nonetheless, the insurance company then stopped all benefits. Fortunately, as soon as the appropriate Motion for Medical and Temporary Benefits was heard in Court the Judge of Compensation entered an Order restoring the worker’s benefits.

If you are injured in a work-related accident and require treatment it is important to obtain the services of Stark & Stark as soon as possible. By having an open file we are able to get into court more quickly should such an unfortunate situation arise with your treatment. We will be happy to help you with your Worker’s Compensation claim.