CHASENBOSCOLO Virginia injury attorney Archives

According to the National Safety Council, falls are one of the leading causes of unintentional injuries in the United States, resulting in approximately 8.9 visits to the hospital every year. Oftentimes, these injuries occur because a landowner did not warn of a dangerous condition on his/her property or created a dangerous hazard on his/her property. Under Maryland, D.C. and Virginia law, anyone who owns or maintains any type of property is legally responsible for ensuring that the property is safe for the public. If they fail to do that, they may be responsible for any injuries that occur as the result of a fall on their property.

Although landowners bear responsibility for keeping their properties safe, our three jurisdictions still adhere to an archaic defense called contributory negligence. If an injured person is found to have contributed to the incident in any way, they cannot recover compensation for their injuries. The law does not allow an apportionment of fault; any contribution, no matter how slight, can completely bar an injured person’s right to recover damages.

How Contributory Negligence is Used in Slip and Fall Cases

Contributory negligence is argued in many ways. For instance, if an injured person is not looking where they are going, or if they have on some clothing that might impede their mobility, or if they are distracted in any way, this could form the basis for arguing that they contributed to their own injures and so are not allowed to recover compensation. Ignoring a warning sign or walking through an area which is not open to the public can also provide the basis for this defense.

Slip and fall injuries often occur in grocery stores. It is not unusual for produce and liquids to be left on the floors after being spilled or dropped by other patrons at the store. These spills, which are oftentimes left on the floor for long periods of time, create dangerous conditions for customers who could slip on this debris and become seriously injured. If a claim is made, the insurance company will argue that the customer was contributorily negligent by not watching where he or she was walking. Or, if there is a warning sign present, and the customer slips near that sign, the insurance company will again argue that the customer is wholly at fault. Once again, under our law, any fault at all on the part of the injured party precludes any recovery.

Oftentimes, when an injured person falls, the insurance company will put blame on the injured person by arguing that their choice of clothing made them contributorily negligent. For instance, they will argue a person contributed to their own injuries by wearing high-heeled shoes or that their floppy hat impeded their eyesight. Or, the insurance company may argue that the injured person was carrying lots of packages and that their decision to do this, while walking at the same time, caused the injury. Texting while walking or using the phone in any manner while in a public place subjects the injured person to an argument by the insurance company that they are responsible for their own injuries.

Any consumption of alcohol could bar recovery of a claim. It is very common for falls to occur at social gatherings. A person or an entity hosting a social event has a duty to all of the guests to ensure that the property is safe and free from any defects. If the host knows of a problem that you do not know about, the host has the obligation to warn you of the problem. For instance, if there is a staircase in the home that is missing a railing or has a loose step, the host must warn you of that problem so that you are not hurt. However, if you had been drinking at the party, and you fall down this dangerous staircase, your claim could be barred by your own negligence. It doesn’t matter how dangerous this staircase is; your decision to consume alcohol may become an issue in resolving your claim.

Many injuries occur on private property, perhaps in a neighbor’s yard, in their pool or around the house. Common sense suggests that if your neighbor creates a hazard, such as leaving a hose strewn across the lawn or allowing ice to accumulate on the sidewalk, that your neighbor would be responsible for the injuries that their carelessness creates. However, you too are responsible for your own choices when you visit your neighbor’s home. When you fail to “see what there is to be seen,” or when you choose to cross over the icy part of the sidewalk, the insurance company may decide that your conduct gives them the ability to withhold any settlement of your case.

How You Can Help Change the Law

For many years, lawyers who represent injured people have been lobbying their state legislatures and bringing cases before our states’ highest courts in an attempt to nullify the defense of contributory negligence. Our jurisdictions make up three of the five states that continue to completely bar recovery to injured people if they are at fault at all. Maryland’s highest court has recently ruled that any change in Maryland’s contributory negligence law must be enacted solely through the legislature, which has the ability to pass a bill to preclude this defense. For Marylanders, this means lobbying your elected officials in Annapolis is an effective way to change this dated and harmful defense.

A vast majority of the states adhere to a doctrine called “comparative fault.” This generally means that if the injured person is partially at fault, the jury may reduce the amount of damages by the percentage of the injured person’s own fault. For instance, if a jury finds that the injured person is 10% at fault, the verdict would be reduced by that amount. This system apportions fault among the parties and generally results in fairer verdicts.

Unfortunately, slip and fall incidents are likely to occur. Parking lots are slippery, stores are not maintained and repairs are not made in a timely manner. It is difficult in everyday life to fully insulate yourself from the poor choices made by others. Protection against injury and against a claim of contributory negligence requires some diligence and a constant awareness of your surroundings.

What should I do if I’m injured in a slip and fall?

If you are injured in a store, or a home, or a parking lot or any premises, it is important to take pictures of the area where you fell, to document the clothing you were wearing, to write down the names and addresses of all witnesses and to obtain a copy of any incident report that is made. It is also important to write down the exact details of how you fell and what caused you to fall. For more information about what kinds of information and evidence you should collect after being hurt in a slip and fall, take a look at my colleague Patrick Stewart’s blog post.

Do not speak to the insurance company about your case. It is prudent to retain an attorney early on in these types of cases so that you and your attorney can review your own actions. When you retain an attorney, make sure to disclose every detail of your fall; particularly what you saw, what you heard and how you acted.

Slip and fall accidents can result in serious and permanent injuries. Remember, if you fall, the insurance company and their lawyers are always looking for ways to make your fall your fault.

by Mike Herdman

If you have just been injured on or in connection with your job, the following can be used as a guide for your next steps. These steps are designed to make sure you avoid common mistakes that can hurt your chances of being properly treated and compensated.

While the internet can be a great resource, this information is being provided as generally applicable advice. Every case is different, and this guide is not a substitute for a competent, experienced lawyer. Please keep in mind that you can reach out to an attorney’s office, such as mine, for a free consultation if you’ve been hurt on the job.

Step One: Report the Injury to Your Supervisor as Soon as You Can

As soon as you reasonably can, contact your supervisor and let them know that you have been hurt. If you were rushed to the hospital right after the injury, you should try to contact your employer and report the injury as soon as you are able.

If the insurance company denies your claim, you may have to prove to a judge, in court, that you were injured on the job. If you cannot prove you were injured, you may receive no compensation in connection with your injury. One of the best places to start is by building a paper trail.

So, tell your supervisor you have been injured. Call them if you cannot speak directly with them. Whether you do or do not speak directly with your supervisor, try to send an email to your supervisor or HR explaining that you were injured, and keep a copy of that email for your own records.

If you can, take pictures of where you were injured, and take down the names of people who witnessed the injury. Try to see if there is a surveillance camera that captured the injury on camera.

Once you have notified your employer that you’ve been injured, they will generally try to fill out an incident report with you and ask that you sign it. It can be ok to sign, as long as you carefully read it over and confirm that the information is correct. Do not give in to pressure to sign something that is inaccurate. If you feel that something is incorrect, you can write corrections directly on the document before signing it.

If your boss tries to persuade you to not file an incident report or claim, this is an immediate red flag that indicates you may not be treated fairly.

Most importantly, tell the truth about what has happened. If the insurance company plans on denying your claim, one of their easiest defenses is to make you look like a liar. Your best defense against this is to always tell the truth, and to be clear about what details you do know, don’t know or don’t remember.

Step Two: Get Medical Treatment

Once you’ve notified your supervisor about the injury, your next step should be to get treatment for your injuries as soon as you can. If you go to your primary care physician 3 months after the injury, you may be forgetting important details about the injury, including when you were injured and how it happened. Delaying your care hurts your recovery, and it hurts your case.

When you are being examined by a doctor for the first time, tell them what happened. Explain to them how you were hurt. Make sure they are aware that you suffered an injury at work, as they should be explaining that in their report. How you were hurt will also give the doctor a better understanding of your current condition, so that they can provide proper medical care.

Next, make sure the doctor (and every following doctor or therapist that you see) is aware of every problem you are experiencing and have experienced since your workplace injury. Doctors are not perfect. The doctors cannot treat issues that they do not know about. If you have fallen from a ladder and broken both of your wrists, the doctor should be able to see the breaks and focus a lot of your treatment on those injuries. However, what if you’re feeling numbness in your fingertips, having nightmares, hearing ringing in your ears or having trouble controlling your bladder? You need to let the doctor know about these issues. Issues that you think may seem too insignificant to talk to the doctor about may in fact be because of something more serious than you realize.

Do not be shy. Sensitive or personal health issues which you may feel embarrassed or ashamed to talk about with the doctor need to be discussed. If you’re uncomfortable bringing it up with your current doctor or nurse, you can ask for somebody else to discuss it with—maybe somebody of the same gender. No matter what has happened to you, medical professionals have likely already seen issues like yours before through training and/or experience. Your injury is not the result of a personal failing, and you will not be judged for it. All of the horrible things that can result from workplace trauma can happen to anybody. Whatever you may experience is a problem which needs to be fixed, but it can only be fixed if the doctor knows about it.

Your medical records are evidence for your case. If your records are missing complaints about certain injuries or don’t describe how or if an injury has occurred, you can find yourself having a hard time receiving benefits from your workers’ compensation case.

Step Three: Dealing With the Insurance Company

In most instances, your employer has an insurance company that provides them insurance for workers’ compensation cases. If your employer does not have insurance, they may be “self-insured” and have the money themselves, or they may be covered by the Uninsured Employer’s Fund of Virginia.

In every case, you must keep in mind that the insurance company is a profit-driven business which is looking to spend the minimum amount of money possible. In many cases, the cheapest thing to do is to provide the injured worker with medical care in order to help the injured worker recover and get back to work without needing more extensive treatment or pay for time off from work. However, when the injury is more serious, the injured worker may find that the insurance company is actively trying to cut costs, and the most effective cost cutting measure is to try and deny any responsibility for your injuries.

If you are contacted by the insurance company and asked if they have permission to take a “recorded statement,” you do not need to comply with that request. A recorded statement is when someone from the insurance company interviews you about the injury and records your statement. A recorded statement provides the insurance company with extra details and information which can (and oftentimes will) later be used against you. You are never required to give a recorded statement.

After you are injured, the insurance company must decide whether they will accept responsibility for your injury. If they have decided to accept responsibility, you should be offered a choice of at least three different doctors who can provide treatment for your injuries. This is referred to as a “panel” of doctors in Virginia. You should choose one of these doctors. After you have made your choice, this doctor and their referrals will be the responsibility of the insurance company. If you try to get your own treatment outside of this doctor, you should expect to have to pay for those costs yourself.

Step Four: Get Disability Slips From Your Doctor

Every time you see a doctor after a workers’ compensation injury, you should never leave the appointment without the doctor writing down what your medical restrictions are. Your doctor will either (1) restrict you totally from doing any sort of work, (2) restrict you from certain activities but clear you for light duty or (3) release you to return to work full duty, without restrictions.

If your doctor has restricted you to light duty (meaning you can do some work, but not all of your normal work duties), it is very important that the doctor give you clear instructions about the sorts of activities you can reasonably do at work while allowing you to recover, and without putting you at greater risk of further injury. Some examples of light duty restrictions include limits on how much weight can be lifted, as well limits on bending, kneeling, climbing, sitting or standing.

Step Five: Follow Your Doctor’s Advice and Keep Your Employer Updated

If your doctor has released you back to doing light duty or full duty work, you should let your employer know about this as soon as possible in order to see if they can provide you with work. If your doctor has released you back to full duty work, you only need to ask to return to doing the job you were doing before the injury occurred. If you were released to light duty, you need to show the doctor’s restrictions to your employer and ask them if they can accommodate those restrictions in the workplace.

If your doctor finds that you are totally disabled from work (meaning you can’t work at all—also known as temporary total disability), you should be eligible to receive workers’ compensation payments for time that you are out of work. You should let your employer know that your doctor has determined you’re totally disabled from working for the time being.

Once you have been properly released to return to your preinjury work, your only chance at being paid is by returning to work and getting paid the way you were paid before the injury. However, if you have been released by your doctor to return to light or full duty work, you need to let your employer know you are eligible to return to work (with restrictions if you’re on light duty), in order to ensure you can get paid. If your doctor has released you back to work to light duty but you do not tell your employer, you may not be eligible for workers’ compensation benefits for time off of work.

If your employer says they can accept you back to work with your current restrictions, you should make sure that they are honoring those restrictions. If your doctor, for example, tells you to not do any overhead lifting at all, yet your employer asks you to stock the top shelves, you should remind your employer that your doctor has forbidden you from doing that activity. You are allowed to refuse to do activities which your doctor has advised you to not do. If you’re being asked to do something your doctor said not to do, or you are doing something you feel you cannot do, you need to notify your doctor right away.

Step Six: Follow Up With Your Doctor

The goal of medical treatment in a workers’ compensation case is to let you recover and heal from your injuries, be released from the doctor’s care and to return to your normal life feeling healthy and able to work. However, until your doctor or therapist says you are released from care and don’t need to come back to see them anymore, you should return to them for continued treatment. At the end of your appointments, your doctor should tell you how soon they want to see you again, and you should make sure to schedule your next appointment for that time.

With proper care, your condition should improve; however, there is always the possibility that your condition can get worse. The doctor needs to know about new problems which were either not there right after the original injury, or which came about afterwards as a result of the injury. If you start feeling new problems, you need to make the doctor aware of them so they can determine if those issues are related to your injury and treat them.

Continued visits to your doctor should also keep you updated about your current work status. If you are still on light duty or temporarily totally disabled (TTD) status, but do not visit your doctor for a disability slip, it can be hard to prove you are entitled to payments for periods that you are not being seen by a doctor.

Finally, you have the right to ask your doctor for referrals to different medical specialists if they are needed. If you are referred by your doctor to another specialist or treatment provider, it’s important you try to get an appointment with them as soon as possible.

Step Seven: Should you hire an attorney?

When you’re unable to get what you want, and you cannot figure out the solution yourself, it’s okay to ask for help. If you find you’re not getting what you want or need, or you feel like you’re not being treated fairly by your employer or their insurance company, you should consult with a lawyer.

Even if you feel that your employer and insurance company seem to be treating you well, you can still talk to a lawyer. Talking to a lawyer can cost you nothing beyond time, as many lawyers give free consultations. There are often benefits available to you which you are not even aware of.

If your case has been denied by the insurance company, you should definitely speak with a lawyer. This is also true if you are not being paid for time missed from work or when the insurance company is refusing to pay for or authorize medical treatment that’s been recommended by your treating doctor.

If you decide to hire an attorney in Virginia, keep in mind that you are generally only paying the attorney a percentage out of what they have recovered for you. If your attorney gets nothing for you, they do not get paid in Virginia. Every attorney’s fee must be determined and endorsed by a judge.

Step Eight: File a Claim to Protect Your Rights

Claims for Virginia workers’ compensation benefits generally must be filed within a maximum of two years of the date you were injured. In most instances, failing to file a claim within two years can prevent you from receiving any benefits. If you do not hire an attorney, you should still file a claim for benefits with the Virginia Workers’ Compensation Commission. The following link includes the form, as well as instructions: http://www.vwc.state.va.us/content/claim-benefits-form.

Hopefully, this has helped explain what your rights are if you’re injured on the job in Virginia. Remember, every case is different, and this guide is not a substitute for a competent, experienced lawyer. If you’ve been injured at work and have additional questions about your rights, you should reach out to a competent, experienced workers’ compensation attorney.

For information on workers’ compensation claims in D.C., check out my colleague David Kapson’s blog post on that topic. For information on how workers’ compensation claims work in Maryland and D.C. when you have more than one job, my colleague David Snyder has an excellent blog post you may find helpful. For information on why the workers’ compensation system is important and protects the rights of everyday, hard-working Americans, my colleague Krista DeSmyter lays out the case in a recent post that I also strongly recommend.