Below is a list of Frequently Asked Questions to help you make your decision to pursue an injury claim.
The first section deals with your Injury Auto Accident Claims and the next section below deals with Workers Compensation claims.
Injury Auto Accident Claims FAQs
1. I don’t really need a lawyer, do I?
The short answer is no, if you understand the process; however few people do. Most people will benefit from having an experienced auto accident attorney handle their claim. An auto accident claim may appear to be deceptively simple at first, but often it can have confusing turns and twists. The insurance companies have a practice of contacting injury victims very early after the accident, often before they have hired an attorney. They contact you often before you know your rights. There is a reason for that practice. They are very nice folks and often tell you that you do not need an attorney. You should ask them a few questions. Will the insurance adjuster represent your interests? Answer: no. Remember you have no experience in handling an auto accident claim. On the other hand the adjuster has handled thousands of claims. Will the insurance company be represented in the process by an individual without experience? Answer: no. Then why should you struggle through this process alone? You should have the wisdom of experienced counsel for the same reasons the insurance company has an experienced representative. An auto accident claim immediately puts your interest at odds with the insurance company’s interest.
2. Can I afford a lawyer?
Yes. The first call is free in an injury case, and we can explain the fee structure during that free conference. In an injury claim, most of the time, the fee is based on a percent of the recovery.
3. How does the lawyer get paid in an auto accident claim?
The standard contract is based on a percentage of the recovery. Some lawyers will charge you by the hour. If you are in a serious accident you are not usually able to pay an hourly fee especially if you are currently out of work due to the injury. Our contract says that the attorney gets paid for his time only if there is a recovery for you. So with Patton & Patton if there is no recovery you do not end up with a large bill to pay for the attorneys time after the case is over.
Get the experts on your side. Call today 273-4330
Injury Workers Compensation FAQs
1. Do I have a Work Disability Claim?
Let’s look at section nine of the new bill amending K.S.A. 44-510e. There are two types of permanent partial disability. The first type is called functional impairment which is sometimes called body disability. The other type of permanent partial disability is called work disability. Work disability is determined by averaging the wage loss with the task loss.
An employee may be able to receive what is called a work disability under certain circumstances as follows:
1. The employee must first have a functional impairment that exceeds 7.5% or exceeds 10% when there is a preexisting impairment.
2. There must be a post injury wage loss of at least 10%.
3. This wage loss must be directly attributable to the work injury and no other causes or factors. This would eliminate the situation where one qualifies for a 100% wage loss just due to a job lay off or other causes unrelated to the actual injury in question in the case before the judge.
2. What about prevailing factor and pre-existing conditions?
The language of the new statute includes numerous attempts to limit the compensation to just the injury that occurred at the time of the accident and its resulting disability. The net effect is to eliminate compensation when the sole cause of the injury or disability was a pre-existing condition. I will review with you the various parts of the new law that have an impact on this issue.
The definition of accident now includes a requirement that the accident or repetitive trauma must be the prevailing factor in causing the injury. K.S.A. 44-508 now includes a new definition of the word “prevailing” which means primary considering all relevant evidence. Primary is not defined and has been interpreted to mean different things in other jurisdictions. No doubt this will be the subject of litigation here in Kansas as well. Black’s Law dictionary defines primary to be first, principal, chief or leading. Where the courts here will draw the line is unknown. This will be a challenge to lawyers as they attempt to obtain medical testimony to clarify the factors involved in the cause of a particular accident.
Section ten of the law deals with the maximum amounts allowed for each type of disability. The bill strikes the words “or any aggravation thereof” from the law.
Section three amending K.S.A. 44-501 in subsection (e) provides that the award is to be reduced by any preexisting impairment.
Also section five amending K.S.A. 44-508 (f)(2) provides that that injury is not compensable because work was a triggering or precipitating factor. An injury is not compensable solely because it aggravates, accelerates or exacerbates a preexisting condition or renders a preexisting condition symptomatic. The word “solely” suggests that an injury is compensable if it aggravates a preexisting problem but not if the only thing it does is aggravate a preexisting condition. This word suggests that there must be some degree of actual new injury at the time of the accident. The section goes on to provide that for repetitive trauma or accident it will be deemed to arise out of employment if the increased risk or hazard to which the employment exposed the worker is the prevailing factor of the accident and disability.
The focus of the inquiry then becomes what new injury and disability actually comes out of this event, this particular accident. So the net effect of this new language would probably be to limit awards to the disability coming from events at work only.
3. Have I have missed the time deadlines?
For accidents or repetitive trauma after May 15, 2011 the law requires notice to be given to the employer by the earliest of the following dates:
1. Thirty (30) days from the date of accident or the date of injury by repetitive trauma;
2. If the employee is working for the employer against whom benefits are being sought and such employee seeks medical treatment for any injury by accident or repetitive trauma, 20 calendar days from the date such medical treatment is sought; or
3. If the employee no longer works for the employer against whom benefits are being sought, 20 calendar days after the employee’s last day of actual work for the employer.
Notice may be given orally or in writing. Where the notice is provided orally, if the employer has designated an individual or department to whom notice must be given and such designation has been communicated in writing to the employee, notice to any other individual or department shall be insufficient. If the employer has not designated a person, notice must be provided to a supervisor or manager. Where notice is provided in writing, notice must be sent to a supervisor or manager at the employee’s principal location of employment. The law places the burden on you to prove that such notice was actually received. The notice shall include the time, date, place, person injured and particulars of such injury. It must be apparent from the notice that the employee is claiming benefits under the workers compensation act or has suffered a work related injury.
For accidents before May 15, 2011, the law requires you to give the employer notice, stating the time and place and particulars of the accident, together with your address within 10 days after the accident, which can be extended to 75 days for just cause. Also please keep in mind that you only have 200 days from the date of the accident or from the last time compensation was paid or medical was paid by your employer to file a written claim with your employer.
You have three years from the date of the accident or two years from the date of last compensation paid, whichever is later, to file an application for hearing with the office of workers’ compensation. Any claim that has not proceeded to final hearing, a settlement hearing, or an agreed award under the workers compensation act within three (five years if the accident was prior to May 15, 2011) from the date of filing an application for hearing pursuant to K.S.A. 44-534, and amendments thereto, shall be dismissed by the administrative law judge for lack of prosecution.
There are exceptions that might apply to you so if you have a question about this give us a call 273-4330.
4. When did this new law take effect?
May 15, 2011 is the effective date of the new workers compensation law. Section 30 of HN 2134 provides that the bill will take effect after May 15, 2011 and publication in the Kanas register. If you go to the Kansas register, which you can find at the Secretary of State’s web page, you will find that the bill was published on April 28, 2011. So this bill will apply to accidents that occur on or after May 15, 2011.
5. Am I entitled to future medical bills paid after the award?
There is now a presumption that medical care terminates once the employee has reached what is called maximum medical improvement. However, the employee may overcome this presumption by proving it is probable that medical treatment is needed. If an employee has not received medical treatment within two years from the date of an award or within two years from the date of the last medical treatment, an employer would be permitted to seek a permanent termination of future medical benefits. At this point there will be a presumption that no future care is needed. This presumption may be overcome by competent medical evidence. (See section 11 and 12 of the bill).
6. Will my retirement effect my workers compensation?
This 2011 law would specify that when the employee takes a lump sum retirement, the workers compensation benefits would be reduced by the weekly value of the retirement. The amount of the reduction is calculated by amortizing the lump sum at four percent per year over the life expectancy of the employee. (See the last part of section 3)
7. How do I calculate my average wages?
The 2011 bill will replace the term “average gross wages” with the term “average wages”. The calculation is made by adding the wages the employee made in the 26 week period prior to the accident and dividing by the number of weeks the employee worked. Calendar weeks are used in the calculation. Wage is defined as the total of money and additional compensation earned by the employee. Under the old law you would look at whether the employee was part-time or full time, and the hourly rate. See section 13 of the bill amending K.S.A. 44-511