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Assaults at Work

“I was injured at my job when a recently hired co-worker lost control of himself and punched me. Do I have a claim against my employer for hiring someone unstable?”

The short answer is yes.  This type of incident would be covered by Worker’s Compensation. Your employer’s Compensation Carrier will cover your medical bills and pay you lost wages while you recover from your injuries. Depending on the type and severity of your injuries, you may be entitled to a settlement at the conclusion of your Compensation case.

 

Injuries Abroad

“I was injured on a jet ski during a recent trip to the Bahamas. Can I sue the hotel for my injuries?”

This is a very complicated question. The answer is going to be probably not. But, the question is so complicated, it would probably take a a long consultation to give you a more precise answer with reasons why you probably couldn’t  sue the hotel.

You will have to consider jurisdiction, the applicable law, the doctrine of forum non conveniens, as well as forum selection clauses, mandatory arbitration clauses, and choice of law clauses. Each of these issues could fill up several law review articles, so I will only attempt to highlight the issues.

If you are injured in the Bahamas, there are substantial questions if an American court has the jurisdiction or authority to hear the dispute between the parties. An American court can have jurisdiction if the hotel or booking agent had marketed itself to people in the State. This may not be difficult, especially considering the internet allows easy international marketing, but this is only the first step.

Second, even if the American court has jurisdiction over the matter, the Court may be compelled to apply the law where the incident occurred. In the Bahamas, there are no jury trials or contingent fees where lawyers can represent victims for fees payable out of the victim’s recovery. (Doe v Sun International Hotels, Ltd., 20 F.Supp.2d 1328 (SD Fla. 1998))

Third, if the case survives the first two hurdles, it must survive a motion to dismiss for forum non conveniens. Essentially, the American court may have jurisdiction, but may decline to exercise that jurisdiction because which court is better suited to interpret the laws of a foreign country, an American court or the Courts in the foreign country?

Finally, if the case can move forward after those three issues, the booking agreement may have a clause or clauses buried in it which may dictate that any disputes be settled in a specific forum (country), or disputes must be settled using only the law of another country, or disputes be settled with arbitration for compensatory damages (medical bills) with no claims for pain and suffering.

Thus, without further information, it is impossible to say with certainty. But chances are, any claims you may have will be derailed by one of the above mentioned issues.

Reimbursement of Travel and Medical Expense

“I was hurt in an accident on the job last year. Can I get reimbursed for my trips to my doctor’s office?”

Yes, you can be reimbursed for your travel expenses. In order to get reimbursed, you should submit a C-257 form to the compensation carrier and the Compensation Board. (You can download the form directly from the Board’s websit by clicking on this sentence .) If you were our client, we could assist you with this process.

You are entitled to reimbursement for attending your doctor’s appointments and other treatments you receive, such as physical therapy appointments, and traveling for diagnostic testing such as an MRI, but you do not receive reimbursement for traveling to and from your pharmacy or attending hearings at the Workers’ Compensation Board.

If you drive yourself, or a friend or relative drives you to your appointment, your travel expenses are reimbursable at the approved rate per mile.  The Carrier’s will use google maps (or a similar search engine) to determine mileage bewteen your home and your doctor’s office. You can print out the results yourself and submit the mileagle along with the form. The rate you are paid at varies year to year.  This year the rate is 56 cents per mile. By clicking on this sentence you can see the reimbursement rates over several years.

If you travel to a hospital, hospital parking is reimbursed provided you obtain a receipt. If you take public transportation, you can be reimbursed provided you obtain receipts. The MTA now offers digital receipts (even if you are taking access-a-ride) which you can use to get reimbursed.

However, using services such as Uber is not generally allowed as a reimbursable expense. First, you need a doctor’s note stating that your medications prevent you from driving and, medically, public transportation is too far away and would require too many transfers or too much time for your condition. Second, you must prove that you have no access to a motor vehicle.

You can also submit medical expenses (with receipts) that are not paid directly by the carrier. Prescription medications, over the counter medications (which your doctor recommends with a note), and bandages, crutches, canes (which your doctor recommends with a note) should be reimbursed by the carrier.

 

 

Zone of Danger

Last year this website wrote a blog that touched on the issue of negligent infliction of emotional distress. The Court of Appeals recently wrote an opinion clarifying an issue surronding these claims: Green v Esplanade Venture Partnership, 2021 NY Slip Op 01092.

This sad story occurred May 17, 2015 when two year old Devere Green was a pedestrian killed by debris that fell from the front of a building owned by defendant. Devere Greene was in the company of her grandmother, Susan Frierson, at the time of this accident. Frierson wanted to make her own claim for damages against the defendant for emotional distress. The Court had previously held that Frierson could make such a claim if she was in the “zone of danger” and she was in the “immediate family” of the injured party.

There was no issue that Frierson was in the “zone of danger” since she was right next to her grandaughter when the debris struck. But prior cases limited recovery to a parent as part of the “immediate family.” This Court in Greene, found that a grandparent could be part of the injured party’s “immediate family.” However, the Court also mentioned there was an “emotional bond” between Frierson and Greene. Frierson was activerly involved in the child’s life with frequent visits and sleepovers at Frierson’s home.

So now this opens additional questions regarding negligent infliction of emotional distress (or “zone of danger”) cases. If an injured party is accompanied by an aunt, or a cousin, or close friend at the time of an accident, could that uninjured person that witnessed the accident make a claim for emotional distress if they have an “emotional bond” with the injured party?

Excess Insurance

“My son was seriously injured in a bicycle accident, but I was disappointed with the recovery he received because my lawyer told me there was a problem with insurance coverage. What can I do to help my son?”

All cars are required by law to carry minimun liability coverage for all accidents. Excess insurance is a term used to describe additional insurance coverage for motor vehicle accidents. If the owner/operator of a car purchased an “umbrella” policy, then the “umbrella” policy would afford additional coverage for a motor vehicle accident. If the owner of a vehicle is different than the operator, then the operator may have his or her own insurance coverage in addition to the policy covering the vehicle. If a tractor/trailor was involved in the accident, then sometimes trailors have their own policies different than the tractor which could provide additional coverage for your accident.

If your son’s case is settled, then there is nothing anybody can do.

But if your son’s case is not settled, your attorney must look for all of the available insurance covering an accident to maximize your son’s recovery. Many defendants simply do not have assets worth attaching to collect a judgment. If your son did obtain a large monetary judgment against the driver that struck him, bankruptcy laws will allow the defendant to discharge that debt through bankruptcy. Your son may be in better position if he had settled his case for the available insurance coverage. But your attorney must look for all available insurance coverage.