Landau Injury Law

Virginia and DC Workers Compensation lawyer Doug Landau suggests disabled workers and their families: get counsel, get the claim filed and get under the protection of an Award, even if they are getting comp benefits already

Virginia workers comp lawyer Doug Landau is often asked this question.  The short answer is, “NO.”  Comp insurance companies may voluntarily pay for medical care or lost wages, and it seems as though they do so for commendable reasons.  However, Warrenton, Bristow and Vint Hill workers compensation lawyer Landau has seen too many cases where the insurance company cut off benefits after getting a taped statement; a favorable medical report; a nurse’s suggestion; a private investigator’s report; videotape; or word from their lawyers that the time limit has run out against the injured worker’s claim.  Filing an accident report with the employer or insurer is not sufficient; the claim MUST be timely filed with the Virginia Workers Compensation Commission (”VWCC”).

This is why it is so important to the ABRAMS LANDAU workers comp trial team to get the claim properly filed and an AWARD entered in Virginia.  An AWARD is a Court Order, from the Virginia Workers Compensation Commission that sets forth the “who, what, where, etc.” and calls for the payments of wage loss and other kinds of compensation benefits, including medical care.  It does not matter if the worker has sustained a brain injury, a herniated disc in their spine that paralyzes them or has been killed.  The “clock” starts running immediately.  Even those job accidents that involve car or truck crashes or other potential “third party liability” claims, the disabled worker must still file with the VWCC.  When there is no AWARD, there is no requirement that the Insurance company or the employer do anything for the disabled worker or a deceased employee’s grieving family and dependents.  That is one reason why, in work accident cases where there is lengthy disability from work, surgery, permanent injury and/or death, experienced legal counsel should be retained immediately.  The Insurance Company has lawyers on retainer and present at every Hearing; so should you!  Just because you may have received some of wage loss money or gotten some medical bills paid, you should still retain an experienced workers comp lawyer to help you.  You cannot rely on the insurance company, employer or their agents to protect you.  They are in the business of making money (or saving their money), not being “Mr. Nice Guy.”

If you or someone you know has been injured or killed in an on the job accident, even if they are getting some workers comp benefits, please e-mail us at ABRAMS LANDAU, Ltd., or call 703-796-9555 today.

The Hampton Roads Virginian-Pilot reports that a Virginia House committee rejected a measure which “would have ensured that home-owners could file claims with their home insurance companies for property damage caused by Chinese-made drywall,” and one which “would have prevented home insurers from canceling policies or raising rates on properties because they were built with the drywall.” While lawmakers “agreed owners of homes built with Chinese drywall deserve relief, they weren’t sure that going through insurance companies was the best way for them to go about getting it.”  Herndon Reston area injury and disease lawyer Doug Landau believes that the Virginia legislature should assist homeowner injured or made ill due to the foreign made drywall.  The American Association for Justice (”AAJ”) information on foreign manufacturer accountability can be found here.

Experienced workplace injury lawyers Doug Landau and Ken Annis compare notes as to what is proper for reimbursement at last week's DC Trial Lawyers meeting

Recently, an experienced personal injury lawyer sent me the following, “We are settling a third-party tort claim in which there is a workers’ comp lien.  I know that my client is responsible for paying back Temporary Total Disability (”TTD”) benefits, medical treatment, prescriptions and transportation costs.  But is my client responsible for paying back the employer and insurance carrier’s legal costs, medical examination charges, nurse case manager, vocational rehabilitation and medical management costs in car crash, dog attack or slip and fall cases ? ”
The short answer, according to experienced Herndon Workers Comp “Super Lawyer” Doug Landau is “NO.”

The employer and their workers compensation insurance carrier is reimbursed for medical care and weekly benefits only, not administrative expense such as:

1. legal costs (lawyers, paralegals, subpoenas, depositions, etc.),
2. document duplication (i.e., the VWCC file, medical records, personnel file, etc.),
3. medical examination charges (often called an “IME” or “Insurance Medical Exam”),
4. private investigators/surveillance,
5. medical utilization review,
6. nurse case manager,
7. vocational rehabilitation, and
8. medical management costs.

There is Virginia Workers Compensation Commission (”VWCC”) authority on point: Lockwood v. Automatic Control of Tidewater, 63 O.I.C. 219 (1984) and Washington v. Miller & Rhoads, 68 O.I.C. 250 (1989).  While insurance companies, employers and their lawyers often try to claim these items for repayment from a workers negligence case, when the ABRAMS LANDAU trial team confronts them with the applicable Virginia case law, they back down and withdraw their claims for these expenses, saving our clients thousands of dollars.  WHile the insurance companies ARE allowed to get paid back on their “IOU,” they can only claim certain expenses.  If you, or someone you know, has had a serious and disabling on the job accident where someone else may have been at fault, please e-mail or call us at ABRAMS LANDAU (703-796-9555).

Top Virginia Trial Lawyers Roger Creager (Richmond), Doug Landau (Herndon - Reston), Barbara Williams (Leesburg), & Lee Livingston (Charlottesville) compared ideas on "independent" insurance medical examiners at the 2009 VTLA Annual Advocacy seminar in Fairfax

Almost every single case involving serious injury, permanent disability or significant wage loss is confronted by an insurance company lawyer demanding an “Independent Medical Examination.” The exam is usually not independent. It is not for treatment, so the “medical” part of the phrase is intellectually dishonest. And as for an “examination,” it’s often more of a cross-examination than a genuine physical exam.

“Independent” medical exams (”IMEs”) are commonplace in personal litigation, workers compensation, and occupational disease cases handled by ABRAMS LANDAU, Ltd. Because they are not truly “Independent,” as we see the same doctors performing exams for the same insurance companies who pay their bills, we refer to these as “defense medical exams” or “insurance medical exams.” A 3/31/09 New York Times investigation titled “Exams of Injured Workers Feed Mutual Mistrust,” reported that, “Often IME doctors are hired by brokers that then have clerical staffs prepare reports based on dictation or checklists completed by the doctors, who often do not read the reports before signing them. The article gives examples of doctors signing reports on exams they never performed. One of the ways Herndon Reston area injury lawyer Doug Landau anticipates this practice is by offering the insurance company a physical exam early in the case, sometimes even before a lawsuit is filed. “The case we select involve serious, objective and usually permanent injuries,” Landau notes. Because we have nothing to hide, I will offer to have my injured client submit to a voluntary physical exam with a qualified doctor, at a reasonable time and place, in lieu of a later examination after suit is filed.” In effect, it is a “put up or shut up” move by the multi-state trial lawyer, known for his unique and innovative techniques.

Coverage Denied to Millions: A recent national survey estimated that 12.6 million non-elderly adults – 36 percent of those who tried to purchase health insurance directly from an insurance company in the individual insurance market – were in fact discriminated against because of a pre-existing condition in the previous three years or dropped from coverage when they became seriously ill.

· Less Care for More Costs: With each passing year, Americans are paying more for health care coverage. Employer-sponsored health insurance premiums have nearly doubled since 2000, a rate three times faster than wages. In 2008, the average premium for a family plan purchased through an employer was $12,680, nearly the annual earnings of a full-time minimum wage job.  Americans pay more than ever for health insurance, but get less coverage. 

· Roadblocks to Care for Women: Women’s reproductive health requires more regular contact with health care providers, including yearly pap smears, mammograms, and obstetric care. Women are also more likely to report fair or poor health than men (9.5% versus 9.0%). While rates of chronic conditions such as diabetes and high blood pressure are similar to men, women are twice as likely to suffer from headaches and are more likely to experience joint, back or neck pain. These chronic conditions often require regular and frequent treatment and follow-up care.

· Hard Times in the Heartland: Throughout rural America, there are nearly 50 million people who face challenges in accessing health care. The past several decades have consistently shown higher rates of poverty, mortality, uninsurance, and limited access to a primary health care provider in rural areas. With the recent economic downturn, there is potential for an increase in many of the health disparities and access concerns that are already elevated in rural communities.

· Small Businesses Struggle to Provide Health Coverage: Nearly one-third of the uninsured – 13 million people – are employees of firms with less than 100 workers. From 2000 to 2007, the proportion of non-elderly Americans covered by employer-based health insurance fell from 66% to 61%. Much of this decline stems from small business. The percentage of small businesses offering coverage dropped from 68% to 59%, while large firms held stable at 99%. About a third of such workers in firms with fewer than 50 employees obtain insurance through a spouse.

· The Tragedies are Personal: Half of all personal bankruptcies are at least partly the result of medical expenses. The typical elderly couple may have to save nearly $300,000 to pay for health costs not covered by Medicare alone.

· Diminishing Access to Care: From 2000 to 2007, the proportion of non-elderly Americans covered by employer-based health insurance fell from 66% to 61%. An estimated 87 million people – one in every three Americans under the age of 65 – were uninsured at some point in 2007 and 2008. More than 80% of the uninsured are in working families.

The Trends are Troubling: Without reform, health care costs will continue to skyrocket unabated, putting unbearable strain on families, businesses, and state and federal government budgets. Perhaps the most visible sign of the need for health care reform is the 46 million Americans currently without health insurance – projections suggest that this number will rise to about 72 million in 2040 in the absence of reform.

The world would be much simpler if each accident resulted in, “he hit me… he pays”. But unfortunately this explanation does not always sit well with both the defendant and the plaintiff.

One more complicated version of an at-fault accident is called negligent entrustment. An example of this accusation would be if a person, or primary party, sued a boy’s parents, for allowing their son to drive a car, even though he was an inexperienced and unfit driver, and the boy hit and injured the primary party.

By definition, negligent entrustment is a claim that a primary party is to blame, because they entrusted a secondary party with an object or ability, who then injured a third party with that entrusted object or ability.

In this claim, the plaintiff must prove that

• The defendant expressly or impliedly permitted the driver to drive his or her vehicle
• The driver was an unfit driver
• The defendant knew or should have known the driver was unfit
• The driver was negligent as a result of the unfitness

In the case of suing the parents of a teen driver, the plaintiff must prove all of the above accusations.  The parents could be held accountable for the accident, because they allowed their son, an unfit driver, to drive their car and the teen driver was negligent due to his unfitness.  In Virginia, the innocent plaintiff can collect damages against the young or unfit driver and, if the facts support the claim, also against the negligent car owners who let the unfit driver operate their motor vehicle.

The idea that an unfit driver does not always put his or herself behind the wheel comes up all the time, but sometimes people overlook negligent entrustment.

The best way to determine what claims can be made (and won) and who may be responsible for your losses is by consulting an experienced trial lawyer.

My lawyer helped me file my claim and we won! But what do I actually receive?

Social Security Disability and personal injury lawyer Doug Landau hears this question all the time. He knows that the official legal jargon can be difficult to decipher, so he has given us an example of a case that was recently won and benefits paid. 

The Federal Administrative Law Judge found that Landau proved his client was disabled from performing any work. This resulted in a payment of  $30,000 in “past due benefits.”  In addition, this ABRAMS LANDAU client will receive monthly payments of $1,206 each month thereafter, increasing each year with Social Security’s Cost of Living adjustments.

The first page of the summary indicates that the defendant will receive a payment of $23,904 this coming month, and a monthly payment of $1,206 each month thereafter.

But how did these numbers come to be?

Here is how the money is broken down:

Of the $30,000, a premium due one month in advance is deducted, as well as a fee for the representative.  The total payment becomes $23,904.  A monthly payment to the disabled claimant is also awarded of $1,302. Once the premium for medical insurance is deducted, the Social Security recipient gets $1,206.  So of the first year’s grand total awarded, with all of the deductions, is $37,230.48.

Attorney Doug Landau does not receive a portion of future payments, and in SSDI cases, attorney fees are contingent (upon winning) and capped!  The client receives 84% of the $44,322 ($30,000 and 11 months of $1,302), in just the first year.  This is not atypical for ABRAMS LANDAU Social Security Disability clients.

The fees paid to our law firm turn out to be a very small percentage of the benefits won.  If you, or someone you know, needs help with their Social Security Disability Income case, please call or e-mail us today.  

In a word, “no’ according to Herndon injury lawyer Doug Landau of ABRAMS LANDAU, Ltd.  The Fairfax, Leesburg and Loudoun injury lawyer belongs to 5 state bars, so sees the difference between the various jurisdictions.  In most states, a lawyer must belong to the state bar association, pay annual dues and attend a minimum number of “Continuing Legal Education’ classes (”CLE”).  the best lawyers belong to a number of bar associations that have educational and practicer oriented programming, but who lobby on behalf of injured workers, victims and their families on Capitol Hill.  Since the injured victims and their families have no “lobby,” as is the case in the courtroom, the trial lawyers associations are their only “voice.”

Many lawyers, unfortunately, just attend this minimum number and belong to only the “mandatory bar associations.”  They do nothing else.  Either they are too cheap, too lazy, too swamped with cases they should not be handling or a combination of those factors.  They do not learn: the latest changes in the law, trial techniques, technical advances or changes in the Code of Ethics.  Landau believes so strongly in continuing legal education, that he not only takes many more hours of CLE than is required in all the states where he practices; the firm also pays for staff to attend these all-important programs.

Furthermore, Landau also belongs to various “voluntary” bar associations.  Landau belongs to the American Association for Justice, the Virginia Trial Lawyers Association, Workers Injury Law&Advocacy Group and other organizations that help injured victims and their families.  Landau is shown here before his speech (on fractured hips and elderly clients) with another “second generation ATLA member” Stephen Herman of New Orleans, Louisiana at the InjuryBoard meeting in Florida.  Landau and Herman shared insights into the handling of personal injury cases and how best to help their cleints, just as their fathers did before them.  Both know it is important not just to pay the dues, but to actually participate, teach and share their knowledge in order to help those who have been injured or lost loved ones due to the negligence or reckless conduct of others.

In Virginia, if you are found dead at your workplace, there is a presumption that it is work-related. But, if you go into a coma, or die a day or month later, then it is not presumed to be a compensable workers compensation case and the claim may be denied if someone else cannot explain what happened to you. Herndon Reston area Workers Compensation lawyer Doug Landau of ABRAMS LANDAU, Ltd. says this is “Nuts.”

Yesterday’s Washington Post carried the true story of a trucker who died after a fall left him brain injured and comatose. No one saw what happened in the Trucking company’s parking lot outside Fredericksburg. Investigators who reconstructed the scene later testified that the trucker, while getting ready for his daily drive, had fallen 12 feet from his truck and hit his head on the concrete. He remained in a coma and died 16 months later, never able to tell his family or supervisors what happened.

Since the fall and injury occurred at her husband’s workplace, at a time he was expected to be there, doing what he was expected to be doing, his family thought that they would be able to get the medical bills paid through Workers Comp. However, his widow was denied twice: (more…)

Home exercise equipment and therapy aids can be paid for by the workers compensation insurance company according to Herndon Reston area injury lawyer Doug Landau of ABRAMS LANDAU, Ltd. For example, in the case of Emmett v. Food Lion, Inc., 73 OWC 166 (1994), an employee sought to hold her employer responsible for exercise equipment prescribed by her treating physician. The Workers Compensation Commission agreed that the equipment was allowed by the Act as an “appliance prescribed by the treating physician” but found that the employer was not required to purchase in-home equipment when it offered to provide use of the equipment at a local gym.

The trial team at ABRAMS LANDAU has gotten gym memberships for clients where the attending physicians have prescribed and exercise program or self-regulated physical therapy. The Loudoun Fairfax Injury Board member has even won pool memberships for clients who need “aqua therapy,” “hydrotherapy,” “aquatic exercise” and “non weight bearing activity.”

In cases where a local gym is not “local,” or the cost is prohibitive, or travel is dangerous or contrary to the treating doctors’ instructions, home exercise equipment can be made the responsibility of the insurance company. Likewise, home therapeutic aids and equipment can be made the responsibility of the insurance company. Examples of such expensive items ABRAMS LANDAU has won for clients include: hospital beds for the home, ramps, railing, special commodes, spa heaters, electrical stimulation units, ergometers, hand exercisers, therapy bands and exercise bikes.

Where the injured claimant cannot travel absent a wheelchair-accessible van, the Workers Compensation Act clearly provides for transportation expenses to and from medical treatment, including meal expenses. Thus, Virginia law is clear, according to Virginia workers comp lawyer Doug Landau that the employer is required to provide appropriate transportation to and from medical treatment, taking into account the claimant’s wheelchair limitations.