Articles Posted in Personal Injury

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Work injury form
There are essentially three benefits provided to injured workers through Alabama’s Workers’ Compensation Act:

  1. Medical Benefits: As long as you are receiving treatment for an injury that arose out of and in the course of your employment and that is provided by a doctor authorized by your employer or its workers’ compensation insurance carrier, then you should not have to pay anything out of your pocket for your medical care. An injured worker cannot choose the doctor who will provide care for his or her injury. You must go to the doctor that is authorized and approved. If you are not satisfied with the approved treating physician (ATP), then you are allowed one opportunity during the course of your claim to choose a different doctor from a panel of four physicians provided by the employer or insurance carrier.
  1. Temporary Total Disability (TTD) or Temporary Partial Disability (TPD) Benefits: If you are unable to work as a result of your injury, you are entitled to Temporary Total Disability payments.  The payments should equal 2/3 of your average weekly wage (determined by reviewing your prior earnings over 52 weeks).  If you are able to work, but are not paid the same as your pre-injury wage, you are entitled to Temporary Partial Disability payments to increase your wages to 2/3 of your pre-injury average weekly wage.  Either of these benefits will be paid during the time of disability and normally cease when your approved treating physician states that you have reached maximum medical improvement (MMI).
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Confused woman. Do I need a lawyerDear Siniard, Timberlake, & League,

 

Last week, I was involved in a car crash.  I was hit from behind and the impact caused a chain reaction.  In total there were four cars involved.  My vehicle was totaled as a result and I suffered severe burns and bruising from the airbag deployment.  As expected, I’ve also been really sore.  I did make a visit to the emergency room and am now seeing my family doctor.  Although I think I’ll be fine eventually, my family keeps urging me to consult a lawyer before I speak with the at fault driver’s insurance company.  I’m not sure if I need a lawyer and I’m concerned about how much it will cost if I do. 

 How do I decide if I should see a lawyer regarding the wreck?  

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Woman with broken arm

 It’s no secret among lawyers in Alabama that our Workers’ Compensation Act provides very minimal benefits to workers who are injured on the job. In fact, Alabama law provides the nation’s lowest workers’ compensation benefits for amputations. Therefore, knowledgeable personal injury attorneys will always try to find another avenue to recover compensation in addition to workers’ compensation benefits.  This is especially important when a client suffers a severe or life changing injury on the job.  The circumstances of how an injury occurred may allow a lawyer to recover additional compensation for an injured worker.    While the majority of injured workers will be limited to workers’ compensation benefits, there a few exceptions in which additional compensation may be pursued:

  • When the injury was caused by the negligence of a “third party”

        Under Alabama law, you cannot sue your employer or even a co-worker for simple negligence if you were injured on the job.  This is the case even when an injury is clearly the fault of the employer or a co-worker.  However, if the person/entity who negligently injured you was not your employer or co-worker (i.e. a “third party”), you can bring a claim against that person/entity for compensation in addition to workers’ compensation benefits. The most common situation involves an automobile wreck. For example, if you are a delivery driver and another person runs a red light and injures you while you are making deliveries, you would be entitled to both workers’ compensation benefits and damages from the other driver. Other examples include injury by a defective product while on the job or being injured on a job site by someone acting as an independent contractor.

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     If you suffer an injury while performing your job for your employer, the most important thing you should do is REPORT THE INJURY TO YOUR EMPLOYER IMMEDIATELY. Tell your supervisor, manager, human resource department or another person with authority.  Do not just mention an accident to a co-worker and assume that your employer has proper notice of the accident.  It is best to report an injury through some type of recorded writing, whether it be text message, e-mail, or other type of written document.    Reporting can be made in person or through a phone call but is best if there is a witness to the conversation.  If you suffer a serious injury and need emergency medical care, then you should seek medical help immediately. However, you must still report the accident to your employer as soon as possible.

       Notifying your employer about an injury is important because there is a specific provision in the Alabama Workers’ Compensation Act that requires an employee to provide written notice of an injury within five days after an accident.  Although the courts have not strictly enforced this time limitation and have allowed claims to proceed where there is good cause for delay or the employer has actual notice of the accident, the best practice is to provide notice as soon as possible.

       It is also important to make some type of documentation recording the details of how your accident happened, what part of your body was injured, whether your injury was immediately painful or disabling or if it worsened after time. You should also keep a record of the persons who witnessed an accident and if possible take pictures of the scene of the accident, any equipment or materials that were involved in the accident as well as the portion of your body that was injured if it is a visible injury.

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     Many personal injury attorneys prominently advertise that they do not charge any fee for initial consultations and that there is no fee unless there is a recovery.  In reality, this is the way that most every personal injury attorney operates.  The majority of attorneys who handle personal injury cases work on what is called a “contingency fee” basis.  This means that the attorney’s fee is “contingent” on obtaining a recovery for their client. stl-blog-title-1-300x169 The attorney will only get paid for working on a case when – and if –  they recover on the client’s behalf.  If there is no recovery for a client, the attorney is not compensated for his or her time spent working on the case.  Likewise, most personal injury attorneys advance the cost of pursuing a claim and are not reimbursed for their expenses – which may be substantial – unless the claim is successful.

A contingent attorney’s fee is based on a certain percentage of the client’s overall recovery.  It works very similarly to a salesperson that works on commission, only instead of the fee being earned at the time of sale, it is earned at the time of settlement or when a final verdict is paid.

       The amount of an attorney’s contingency fee in a personal injury case will vary based upon the type of case.  In a workers’ compensation case under Alabama law, the fee is limited by the Workers’ Compensation Act to 15% of the recovery.  In other types of cases, it is common for a contingency fee to be 1/3, or 33.33%, of the recovery.  In the event a claim has to be filed in court and/or tried before a jury, the fee may increase to 40% of the recovery.  This allows the attorney to be compensated for the additional time, effort and expense associated with working on a case in litigation and/or trying a case to a jury.

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       There are serious legal liabilities that can come with gun ownership and use, especially anytime a firearm injures another person—whether it was done intentionally or even accidentally.  If one person intentionally shoots another without legal justification, they can face criminal charges ranging from assault to murder, and may face serious jail time or worse.  However, the shooter may also face civil liability for an intentional shooting.  If the victim survives the shooting, the shooter may be forced to compensate the victim for medical expenses, lost wages, physical pain and suffering, and mental anguish. revolver_MJtlBX5_-1024x1024 The shooter may also be forced to pay punitive damages or additional money paid to the victim to punish the defendant shooter and make an example out of them for the community at large.  If the victim is killed, their family or next of kin may bring a wrongful death claim against the shooter to seek compensation for the loss of their loved one and to punish the defendant shooter for taking another human life.

       A shooter can also face hefty civil liability if they accidentally shoot another person—whether the shooting occurred because the gun was fired when they did not mean to shoot it, or in a situation where they intended to fire the gun, but hit the wrong target.  The victim of an accidental shooting has the right to sue the defendant shooter for monetary compensation for their injuries, just like in the case of an intentional shooting, but may only seek punitive damages under specific circumstances.  If the defendant shooter “wantonly” fired the gun, meaning that they did not mean to harm someone, but fired the gun with a reckless or conscious disregard for the possibility that someone could be injured, then the shooter could be forced to pay punitive damages to their victim.  If a person is killed because of an accidental shooting, then their family or next of kin would have the right to bring a wrongful death claim against the defendant shooter, just the same as with an intentional shooting.

       Most liability insurance companies do not provide insurance coverage for criminal acts, so in the case of an intentional shooting, the victim or their family are often forced to seek compensation from the shooter’s personal assets.  In the event that a shooting is unintended or accidental, a liability insurance policy – such as a homeowner’s insurance policy – may provide coverage to a victim.  Please keep in mind that some liability policies may not provide coverage for injuries resulting from the ownership or use of a firearm even in the event of an accident.  As such, gun owners should review the terms of their liability policy with their insurance agent and purchase an additional cover rider if necessary.

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Boat in Water

       In Alabama, as in most states, the law that controls a claim for compensation for injuries will differ significantly depending on whether a person is injured on land or on water.  Most claims for injury on land are based on the theory of common law negligence or the failure to exercise reasonable care.   Although some claims for injuries on a waterway may be based on negligence, in many instances they are   controlled by specific statutes that comprise admiralty law.

       There are several key differences between a person’s rights in a common law negligence case and an admiralty law case. For instance, under the common law, Alabama applies the doctrine of contributory negligence, meaning that if you contribute to the cause of an injury, no matter how slightly, you are barred from any recovery.  Comparative negligence applies in Admiralty law cases so fault is apportioned between the parties. If one person is 10% at-fault, they can still recover 90% of the damages they suffered.  It is also significantly more difficult to bring a wrongful death action under admiralty law versus common law.  Another key difference between a motor vehicle collision under common law and a boat collision under admiralty law is that “guest statutes” such as the Alabama Guest Statute have been found not to apply.  In addition, common law motor vehicle injury cases in Alabama are governed by a two year statute of limitations, while an Admiralty boat collision case would have a three year statute of limitations in which to file a lawsuit.

       Although Alabama has adopted a Mandatory Automobile Liability Insurance Act, there is no requirement that an operator of a boat have liability insurance.  A person with a boating license may operate a watercraft at 12 years old so long as they are supervised by a person over 21 years old.  A 14 year old person with a license can operate a watercraft unsupervised.

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     Errors in the prescribing and dispensing of medication are increasingly widespread problems that pose significant danger to consumers.  The Food and Drug Administration defines a Medication Error as “any preventable event that may cause or lead to inappropriate medical use or patient harm while the medication is in the control of the healthcare professional, patient, or consumer.”

     According to a Johns Hopkins Study released in 2016, over 250,000 deaths per year in the United States are due to medical errors.  This indicates that medical errors are the third leading cause of death in the United States. While there are many government oversight programs, such as the FDA MedWatch program and state administrative programs, medication errors continue to unnecessarily cause harm and death.

     Injuries from medication errors may involve a wide variety of healthcare providers, including pharmacies, home infusion companies, nursing homes, hospitals, physicians, nurses, and even medication couriers. The researchers at Johns Hopkins concluded that “most errors represent systemic problems, including poorly coordinated care, fragmented insurance networks, the absence or underuse of safety nets, and other protocols,” as well as physicians that are not following standard practices.

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          Southern hospitality is a long standing tradition in Alabama and our residents take pride in offering guests food and drink — especially during college football season.  However, if you are serving anything more intoxicating than a glass of sweet tea to your guests, there are certain laws in Alabama that you need to understand and follow closely.  Most problems in this area are associated with a homeowner serving alcohol to minors.  STL-Party-BlogIn Alabama, the age of majority is 19 years of age, but a person must be 21 years old to legally purchase or consume alcoholic beverages.  Persons under 21 years of age cannot legally possess or consume alcohol under any circumstances, even in a private home or with parental permission.  Alabama Code § 28-1-5.

       Under the Alabama Civil Damages Act, social hosts can be liable if they provide alcohol to a a person under 21 years old and that person is injured or injures another person while intoxicated.  The parents or children of an intoxicated person under 21 years old that is injured can make a claim against the homeowners that provided the alcohol.  Other parties that are injured may pursue claims against the homeowners as well as the intoxicated person.  For example, if the host of a party provides alcohol to a person under 21 years old who then becomes intoxicated and causes a car crash as a result, the host could be sued by both the parents or children of the intoxicated person and by anyone else the intoxicated person injured in the crash.

               Homeowners may also be guilty of a crime if they allow persons under 21 years old to drink alcohol or use controlled substances on their property.  It is a misdemeanor for an adult homeowner to allow an “Open House Party” at their residence.  The Alabama Open House Party Law, makes it unlawful for an adult who is aware of the party and in attendance to allow a party to continue if:

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According to Alabama Code § 32-5A-350, it is against the law to use a cellular telephone or other similar device to send or receive text based communications, including text messages, instant or direct messages, pictures, and electronic mail while operating a motor vehicle on a public road, street, or highway.  The penalty is $25.00 for a first violation, $50.00 for a second violation, and $75.00 for a third or subsequent violation.

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Violation of the statute can be the primary or sole reason for being stopped by a law enforcement officer.  This means that a law enforcement officer can stop a motorist for texting and driving without witnessing any other moving violation. If someone is texting and driving, an officer can stop that driver and issue a ticket, even if the driver is following all of the other rules of the road at the time.

Although texting is illegal, the statue allows the user of a device to “read, select, or enter” a telephone number in a device for the purpose of making a call while driving.  The statute also allows for the sending and receiving of messages with voice operated devices when driving an automobile. Continue reading