How to document your recovery after a car crash

By William J. Price

car crashMany car crash victims suffer serious injuries that prevent them from caring for themselves and their families or doing the things they love.

Whether these struggles will last for months or a lifetime, documenting the recovery period can be an important step toward building the foundation of a case. A skilled attorney can combine these notes with information about the injuries and treatments to paint a picture of the ways the victim’s life was changed by the crash and determine how they should be compensated for the damages. Continue reading “How to document your recovery after a car crash”

How to document your recovery after a car crash

By William J. Price

car crashMany car crash victims suffer serious injuries that prevent them from caring for themselves and their families or doing the things they love.

Whether these struggles will last for months or a lifetime, documenting the recovery period can be an important step toward building the foundation of a case. A skilled attorney can combine these notes with information about the injuries and treatments to paint a picture of the ways the victim’s life was changed by the crash and determine how they should be compensated for the damages. Continue reading “How to document your recovery after a car crash”

Concussions: Reducing the Risks for High School Athletes

On Monday, Aug. 1, high school athletes around the state officially Preventing Concussions kicked
off their training for fall sports. Last year, Ohio High School Athletic Association introduced new regulations to help prevent concussions during football practices, but athletes in every sport are at risk of suffering this common injury. The first match-ups of the season are only a few weeks away, so take this time to learn the symptoms of a concussion and steps you can take to reduce your child’s risks.

What causes a concussion?

Concussions, usually caused by a blow to or violent shaking of the head and body, are the most common type of traumatic brain injury. Compared to other types of injuries, recovering from a concussion can be a relatively quick process. However, early detection is the key to preventing further damage or long-term consequences.

Common symptoms of concussions

  • Difficulty thinking clearly, concentrating or remembering new information
  • Headaches
  • Blurred vision
  • Dizziness, nausea or vomiting
  • Sensitivity to light or noise

Tips for reducing concussion risks in youth and high school athletes

Participation in sports can be a great experience for kids of all ages, but safety should always come first. Follow these tips to reduce your child’s concussion-related risks:

Consider baseline testing.

A trained health care professional can measure and interpret your child’s reaction times, balance and other cognitive processes to determine his or her standard performance. The results of these baseline tests can prove very helpful when determining the seriousness of the injury and recovery progress, but should not be used alone to diagnose a concussion.

Educate and empower your child.

You won’t be on the field or court to monitor your child’s health during games and practices. Educate them about the risks and symptoms of concussions, and encourage them to inform a coach or seek medical attention if there’s even a small possibility they suffered an injury. Remind your child it’s better to miss one game than the whole season.

Don’t rush recovery.

Athletes who resume activity while the brain is still healing increase their risk of suffering a second concussion or permanent brain damage. Symptoms can last anywhere from a few days to a few months, and are different for every person. If your child has suffered a concussion, the CDC recommends this 5-Step Return to Play Progression.

Check out these guides for tips on avoiding concussions in your child’s particular sport.

Best of luck to all of our area athletes as they enter their upcoming seasons!

Thanksgiving Fire Prevention Tips

Cooking is the number one cause of home fires.
Cooking is the number one cause of home fires.

For many Americans, the best part about Thanksgiving is sitting down to a delicious home-cooked holiday dinner with friends and family. Unfortunately, cooking is the number one cause of home fires and the greatest number of them occur on Thanksgiving Day.

The American Red Cross offers these tips to follow while preparing your Thanksgiving meal:

  1. Do not wear loose-fitting clothing or sleeves that dangle while cooking.
  2. Never leave your food unattended. If you are frying, grilling or broiling food, never leave it unattended—stay in the kitchen. If you must leave the kitchen—even for a short time—turn off the stove.
  3. Check your food regularly when simmering, baking, roasting or broiling food.
  4. Use a timer. It’s easy to lose track of time. Use a timer to remind yourself that the stove or oven is on.
  5. Keep kids and pets away from the cooking area. Make them stay at least three feet away from the stove.
  6. Keep anything that can catch fire away from the heat source. This means: potholders, oven mitts, wooden utensils, paper or plastic bags, food packaging, and towels or curtains. Keep them away from your stove, oven or any other appliance in the kitchen that generates heat.
  7. Clean on a regular basis. Clean cooking surfaces and range hoods on a regular basis to prevent grease buildup.
  8. Keep a fire extinguisher in your kitchen and learn how to use it.
  9. Always check the kitchen before going to bed or leaving the home to make sure all stoves, ovens, and small appliances are turned off.
  10. Install a smoke alarm near your kitchen, on each level of your home, near sleeping areas, and inside and outside bedrooms if you sleep with doors closed. Use the test button to check it each month. Replace all batteries at least once a year.
  11. Ensure your guests are aware of all available exits if a fire were to occur and inform them of a designated meeting place outside.

For more Thanksgiving safety information, including thawing and cooking times, tips for deep-frying a turkey, and proper leftover storage, read our in-depth Thanksgiving Dinner Safety blog.

From all of us at Elk & Elk, have a happy and safe Thanksgiving!

You did not sign away all your rights with that injury waiver

 

People participate in many physical activities, usually with an understanding of the associated risks and dangers. The activity could be mild, like riding in a go-kart or extreme, like bungee jumping or skydiving. It seems like everywhere you go, you’re being asked to sign a waiver to exclude someone from being sued.

An injury waiver, also known as a release and waiver of liability, frequently states that a participant cannot take legal action if they are harmed or injured in any way because of the activity. But is that it? Does a waiver prevent us from taking any action — no matter what has happened? Actually, the answer is no. You do have some rights.

A waiver, once signed, is a valid contract. However, in the state of Ohio, you cannot waive away a person’s rights from unforeseeable negligence. By signing, you are saying that you understand the risk and are agreeing to go forward with the activity anyway. You are not saying that you won’t sue if someone is negligent and causes you harm.

Another instance that may allow you to file a claim is an injury due to a defective product. If you were injured as a result of a defective product and the defendant knew (or reasonably should have known) about the defect, you may be entitled to money damages.

If you suffered an injury because of a normal risk associated with the activity, you probably don’t have a case. On the other hand, if negligence was involved, your injury probably wasn’t caused by any of the normal risks and you may have a valid claim.

To learn more about personal injury law, I encourage you to watch the video above and to explore our educational website at http://www.elkandelk.com. If you have legal questions, please call us at 1-800-ELK-OHIO. I welcome your call.

Art Elk

Workplace Injuries Should Be Reported

The Wall Street Journal recently ran an article stating there has been a 31 percent drop in workplace injury claims over the last decade. While that number appears encouraging, there is more to the story. In that same time period, there has also been a 50 percent rise in employer retaliation claims and some government officials worry that many injuries are not being reported. If you have been injured on the job, it is important to report the incident to your employer and seek medical attention right away.

Employer Retaliation

photo_1115_20060217Many employees feel pressure to keep workplace injuries quiet. Some workers worry that if they report an injury, their employer may withhold a raise or promotion. Others feel they may be fired. You should know that federal law bars employers from retaliating against employees for reporting injuries. Additionally, Ohio statutes provide:

No employer shall discharge, demote, reassign, or take any punitive action against any employee because the employee filed a claim or instituted, pursued or testified in any proceedings under the workers’ compensation act for an injury or occupational disease which occurred in the course of and arising out of his employment with that employer. (Ohio Revised Code 4123.90)

If you feel that your employer mistreated you because you reported a workplace injury, you may have a claim. It is crucial to handle employer retaliation and other whistleblower claims promptly; you may only have 30 days to file a claim.

Underreporting

Even if an employee does report getting hurt at work, sometimes the severity of the injury is not fully documented. A 2009 study from the Government Accountability Office reported that more than a third of health practitioners were asked by management to provide workers with treatment that wouldn’t require a formal report. If you do get injured at work, don’t try to “play it down.” Be honest with your healthcare provider about any symptoms you may be experiencing.

Peer Pressure

Contrary to popular belief, programs for maintaining safety records don’t always improve safety. When an employer institutes a safety policy that provides bonuses or prizes to groups, it can create peer pressure not to report workplace injuries.

For more information, contact our experienced workplace injury attorneys by calling 1-800-ELK-OHIO (1-800-355-6446) or complete our free, no-obligation online form.

 

Source: Workplace Injuries Drop, but Claims of Employer Retaliation Rise” by James R. Hagerty, The Wall Street Journal, July 22, 2013.

Cleveland Police settle lawsuit for $600,000

The Cleveland Police Department has agreed to a $600,000 settlement in civil lawsuit brought by a Cleveland Heights man who claimed he was attacked by officers after a traffic incident. In 2011, plaintiff Edward Henderson crashed his van near downtown on New Year’s Day after a police chase. According to the complaint, after he had been handcuffed, Henderson was held down by police while they kicked and kneed him in the head. He suffered a detached retina and broken eye socket.

As part of the settlement, Henderson’s attorney will provide model policies to the city on the use of excessive force. “I’m hoping this is another step towards reform and I’m hoping that we can work with the police department, and the police union, in a collaborative effort to continue to reform the police department for the better,” said lawyer David Malik.

The Plain Dealer reports that the officers involved in the altercation were initially charged with felonious assault and obstruction of official business, but that Former Cuyahoga County Prosecutor Bill Mason later elected to dismiss all charges. A spokeswoman for the city confirmed the settlement, but she said it doesn’t include admission of wrongdoing by officers.

Henderson is currently serving a 3-year prison sentence for assaulting an officer as a result of the chase. In March, the U.S. Department of Justice said it was opening a wide-ranging civil rights investigation into the use of force by Cleveland police. The DOJ is analyzing several years of excessive force claims and police policies, training and procedures including last year’s shocking shootout which involved five dozen cruisers and 137 rounds of ammunition fired by 13 officers which resulted in the death of 2 unarmed people.

 

Source:Cleveland Heights man who said he was beat by Cleveland cops awarded $600,000 in settlement” by Stan Donaldson, The Plain Dealer, July 11, 2013.

Toledo Sinkhole Swallows Car

Ohio made national news this weekend when a massive sinkhole in central Toledo opened up, consuming a moving car and its driver. Local elementary principal Amanda Knox was driving along when the road gave way beneath her Chevy Malibu. Luckily, the vehicle landed upright in the crevasse but a pipe had burst, causing water to rush into the hole. Rescue crews quickly arrived, pulling Knox from her vehicle, remarkably unscathed.

City spokesperson Jen Sorgenfrei stated that the collapse of brick sewers beneath a road caused the sinkhole that swallowed the moving car. The Toledo Blade reports, “The sewers — one 30 inches in diameter and the other 36 inches in diameter — were made of brick and constructed in 1891.”

Taking Responsibility

Although the driver in this case was relatively lucky, with many Ohio cities relying on sewer systems over 100 years old, the likelihood of more accidents seems inevitable. This may leave many of our readers wondering who would be responsible in the event of a serious injury or death involving a city sewer. Surely the city would be liable… right? Well, not exactly. Because in 1985, the Ohio legislature passed the Political Subdivision Tort Liability Act, a law that states that political subdivisions are immune from some kinds of civil liability. To put it more simply, state law may prevent these governmental entities from being sued by injured parties in certain cases.

Splitting Hairs

There are two different sections of Ohio law dealing with sewer systems:

  • A political subdivision is immune from claims based on negligent planning or design of a system or when arising out of an employee’s discretionary act
  • A municipality is NOT entitled to immunity for the “maintenance, destruction, operation and upkeep of a sewer system”

In the past, courts have found no immunity exists for the actual maintenance work of a sewer system once it has already been installed, but there is immunity from a lawsuit for any decisions made regarding where to put it, how it should be designed, and even whether the city should service the system at all. In one case, the court held that a city is immune from liability when it exercises its judgment “in determining how to allocate its limited financial resources, with regard to updating the sewer system.” The Ohio Supreme Court has even found that “upkeep” is immune but an “upgrade” is not.

What does this mean? If you have been injured due to the neglect of a political subdivision, it is crucial to contact an experienced lawyer. The laws are complicated and require a comprehensive understanding of statutes and legal precedents. Call 1-800-ELK-OHIO or contact us online to schedule your free consultation. We are available 24/7/365, and we never charge any fees up front. Ask about our no fee promise.

Sources:

Giant Sinkhole swallows Car” by Mike Sigov and Taylor Dungjen, Toledo Blade, July 4, 2013.

“Storm Drains and Immunity” by Justice Paul E. Pfeifer, Weekly Column, March 6, 2013.

Coleman v. Portage Cty. Engineer, 133 Ohio St.3d 28, 2012-Ohio-3881.

Duvall v. City of Akron, 1991 Ohio App. LEXIS 5381 (Ohio Ct. App., Summit County Nov. 6, 1991).

Keytack v. City of Warren, 11th Dist. No. 2005-T-0152, 2006-Ohio-5179

Shumaker v. Park Lane Manor of Akron, 9th Dist. No. 25212, 2011-Ohio-1052.

BP Fighting Payments to Spill Victims

In what appears to be an effort to intimidate oil-spill victims, BP is sending out hundreds of letters, warning settlement recipients they may have to return part of the money. BP is currently appealing the settlement process, alleging administration errors that resulted in overpayments and “fictitious awards.”

According the Houston Chronicle, “One of the letters says if the appeals court reverses a claimant’s award, BP reserves its right to recover money the client received as well as the cut that went to the claimant’s lawyers.” A hearing for the case is scheduled for July 8 in the Fifth Circuit court of appeals in New Orleans.

The oil company agreed to a settlement last year for its part in the 2010 Deepwater Horizon catastrophe that killed 11 people and released 200 million gallons of oil into the Gulf of Mexico over 87 days. Recipients include local businesses and individuals that sustained economic losses, ranging from property damage to medical bills.

The letters are just part of the BP’s full-out media blitz. The London-based company also took out full page ads in main U.S. newspapers, including the New York Times and the Wall Street Journal accusing “trial lawyers and some politicians” of encouraging businesses to submit thousands of claims for inflated or non-existent losses. Lawyers for the plaintiffs contend that “it’s “BP’s problem” if the corporation underestimated the total amount of the settlement. Payments were clearly spelled out in the agreement and that BP “shouldn’t be allowed to push the rewind button now.”

Stand up to bullies

It is important to know that businesses will use every measure available to them in order to protect their bottom line. BP’s carefully worded letter announces that it “reserves any rights it may have to recover funds…”  However, it does not say that BP actually has any rights to recover settlements it already paid.

Intimidation tactics are just one of the ways a corporation may try to discourage injured parties from pursuing legal action. If you have been injured and a corporation or insurance company is denying your claims, call 800-ELK-OHIO or contact us online for a free consultation.

 

Source: “BP warns some oil spill claimants” By Harry R. Weber, Houston Chronicle, June 27, 2013.

Workers’ Comp may not pay for PTSD

The Ohio Supreme Court recently ruled that an injured truck driver suffering from post-traumatic stress disorder (PTSD) may only receive workers’ compensation benefits for his physical injuries since the cause of his psychiatric condition was the horrific nature of the accident, not the injuries themselves.

The case stemmed from a 2009 motor vehicle accident. While driving a dump truck for the John Jurgenson Company, Shaun Armstrong saw another vehicle rapidly approaching from behind. Fearing the worst, he braced for impact. After the accident, he peered into his mirror only to see fluid spilling out of the vehicles. Afraid they may catch fire; he got out of his truck and called 9-1-1. Then he saw the other driver — bloodied and motionless — Armstrong feared he was dead. At the ER, Armstrong was treated for multiple injuries. He also found out, much to his dismay, the other driver had perished in the accident.

Armstrong applied for, and was granted, workers’ comp benefits for his physical injuries. Then, when he was diagnosed with PTSD, he filed an additional claim. The Bureau of Workers’ Compensation approved his claim, which was then challenged by his employer. While no one disputes Armstrong has PTSD, the parties offered differing expert testimony as to the cause of it. Unfortunately for Armstrong, the jury decided that his injuries did not cause his PTSD.

The court came to its decision after parsing a simple phrase, “arisen from injury.” According to Ohio law, the BWC will only pay a claim for a psychiatric condition when it has “arisen from an injury or occupational disease sustained by that claimant.” Writing for the majority, Justice French opined that the injured worker “must establish that his PTSD was causally related to his compensable physical injuries and not simply to his involvement in the accident.” Simply put, the court decided that the injuries themselves must be the cause of the PTSD for it to be covered under workers’ compensation, not just because they both stemmed from the same incident.

Workers’ compensation and other injury claims can be complicated. Our accident attorneys have nearly 50 years of experience helping clients with serious injury cases, filing thousands of claims for compensation. We have the experience, the knowledge and the resources to provide advice and guidance throughout the legal process. We serve clients statewide from offices throughout OhioCall 1-800-ELK-OHIO (1-800-355-6446) to schedule your free consultation. You may also contact us online.

 

Sources:

Workers’ comp need not cover mental-health claim, justices ruleThe Columbus Dispatch, June 5, 2013.

Armstrong v. John R. Jurgensen Co., Slip Opinion No. 2013-Ohio-2237