Frequently Asked Questions

Yes.  Legislation on both the federal and state levels requires documentation of assessments, plans of care, and the care provided.  Further, the documentation must be complete and accurate.

This occurs often.  Following an appropriate course of treatment, your doctor may indicate you are able to return to some form of employment, but not the type of job you did at the time of the accident.  In those situations, you may be eligible for job retraining through several private and state-run programs.  We can assist you in that regard.  In addition, we will incorporate into your case an analysis of your loss of income due to the fact that you will have to find a new type of career.  This is often referred to as a wage differential claim.  We retain the appropriate experts who will calculate the amount of wages and benefits you would have earned had you not been injured, and then compare those to what you could be expected to earn in a new type of position.  The difference in those earning projections will be presented to the judge and/or jury.

Social Security Disability is a program administered through the federal government.  If your treating physicians find that you are totally and permanently disabled from engaging in gainful employment, you may be eligible for Social Security Disability.  Also, you may be eligible for short-term disability if you were completely unable to engage in any form of employment for a short period.  We have attorneys that handle Social Security Disability case and can assist you in your application.  If you are a recipient of Social Security Disability benefits, you will not be required to reimburse Social Security Disability out of the proceeds of your lawsuit.  However, the amount you have received from Social Security Disability in the past and the amount you are likely to receive in the future will be an offset from your damage award if your case proceeds to trial and a jury renders a verdict in your favor.

Evidence of an OSHA violation will be very helpful to proving liability in your lawsuit.  Many state worksite safety statutes are modeled on the OSHA code.  For example, § 241(6) of the New York State Labor Law has many provisions similar to the OSHA standards that can form a basis for finding an owner or contractor responsible for the your injuries.  

A local jury of your peers will determine who prevails in your worksite safety statute lawsuit.  With a Workers' Compensation claim, you have no right to a jury trial and must abide by the decision of an Administrative Law Judge before the Workers' Compensation Board.  In your lawsuit, however, you have the right to have a jury determine whether there has been a violation of the worksite safety statutes and also have the jury determine what is the fair and appropriate amount of the damages you are entitled to as a result of the injuries you sustained.

Yes.  Each state has legislated its own time limits.  These time limits are often referred to as "statutes of limitations."  Your individual state law will have to be reviewed for the correct statute of limitations.  In New York, the statute of limitations is generally three years.  That means that you have three years from the date of your accident to file a lawsuit under §§ 200, 240(1) or 241(6) of the New York State Labor Law.  If a claim is not brought within the applicable statute of limitations, it will be forever barred.  It is important to realize that under certain circumstances the statute of limitations will be much shorter.  For example, again in New York, where a municipality is the proper defendant, you might have as little as 90-days from the happening of the accident to file a claim.  This often occurs in construction projects owned by town, county, city or state government.  The lesson is that you should contact an attorney as soon as possible following your accident.  

You are able to recover far more in a worksite safety lawsuit than in workers' compensation.  Remember, Workers' Compensation generally will pay you your medical benefits and claim a portion of your past lost wages.  The damages recoverable in a lawsuit are much broader.  For example, we are able to recover for your past and future pain and suffering, past and future loss of enjoyment of life, past and future mental and emotional suffering, past and future medical expenses, and the full amount of your past and future lost wages.  

Yes.  In fact, that is usually the way it is done.  Workers' Compensation benefits will assist you while we prosecute your worksite safety lawsuit.  The suit will generally take more time because we must prove that the owner or general contractor violated the statute that resulted in your injuries.  This is a more in depth proceeding than a workers' compensation claim, which generally automatically pays you with a minimal level of proof of being hurt on the job. In other words, in Workers' Compensation you do not have to prove that your employer was negligent or violated any rule or regulation.  In a lawsuit, however, you may not recover without such a finding.  

Workers' Compensation statutes were enacted to provide a minimum level of protection for injured workers. All Workers' Compensation statutes are based upon the same premise:  A worker may not sue his employer, but he will automatically be entitled to payment of his medical bills and a portion of his lost wages.  Remember, this ban on bringing a lawsuit against your employer applies no matter how negligent the employer ¾ or co-employee ¾ was in bringing about the injury.  A claim under one of the above-referenced worksite safety statutes is separate and distinct from a workers' compensation claim.  The idea behind a claim under a worksite safety statute is that the injured worker may bring a claim against a responsible owner or contractor that has violated one of the provisions of the statute.

Restraints can be either physical or chemical.  A resident has the right to be free from any physical or chemical restrain that is imposed for the reason of discipline or convenience and is not required to treat the resident's medical symptoms.  A physician's order and informed consent by the resident or resident's representative is necessary for the use of restraints.  

• Bedsores on the buttocks, sacrum (low back), and heels
• Bruising and lacerations
• Excessive weight loss
• Fecal/urine odors
• Fractures
• Dehydration
• Malnutrition

Nursing home residents can be subject to a variety of abuse, including, but not limited to, verbal abuse, emotional abuse, and medication restraints (over sedation). 

Under the Nursing Home Reform Act, each facility must make an initial assessment of a resident's interests, strengths, and needs within 14 days of the resident's admission to the nursing home (7 days for Medicare residents).  This is the "blueprint" that outlines the care and services that a resident is supposed to receive.  Assessment reviews should be held annually or when a resident's condition changes and requires attention.  A plan of care, which sets out what will be done, who will perform the tasks, and when the tasks will be completed, is established based upon this assessment.  The initial plan should be completed within 7 days after the assessment is finalized. 

The Nursing Home Reform Act is a federal law and applies to all states.  Most states have adopted their own laws regarding nursing home reform, which in many cases mirror the federal OBRA statute.

Yes, the Nursing Home Reform Act discussed above also established the following rights for nursing home residents:

• The right to freedom from abuse, mistreatment, and neglect.
• The right to freedom from physical restraints.
• The right to privacy.
• The right to accommodation of medical, physical, psychological, and social needs.
• The right to participate in resident and family groups.
• The right to be treated with dignity.
• The right to exercise self determination.
• The right to communicate freely.
• The right to participate in the review of one's care plan and to be fully informed in advance about any changes in care, treatment, or change of status in the facility.
• The right to voice grievances without discrimination or reprisal.

The extent to which the Nursing Home Reform Act succeeds in actually improving nursing homes depends upon the effectiveness of its enforcement.  At Brown Chiari, our lawyers are dedicated to the enforcement of each and every right of the nursing home resident. 

In general, the Nursing Home Reform Act was established to ensure that residents of nursing homes receive quality care and was part of the Omnibus Budget Reconciliation Act (OBRA) of 1987.  The basic objective of the Nursing Home Reform Act was to ensure that residents of nursing homes received quality care that will result in their achieving or maintaining their highest practicable physical, mental, and psychosocial wellbeing. 

Nursing homes will receive Medicaid and Medicare payments for long-term care of residents only if they are certified by the State to be in substantial compliance with the Nursing Home Reform Act.

Under the Act, it is required that residents receive periodic assessments, a comprehensive care plan, nursing services, social services, rehabilitation services, pharmaceutical services, dietary services, and, if the facility has more than 120 beds, the services of a full-time social worker.

You should contact the Department of Health in your particular state.  In New York State, you should call 1-888-201-4563.  In addition, you should seek legal counsel from an attorney who has experience in investigating and litigating nursing home abuse and negligence cases.

• Dehydration
• Bedsores
• Weight loss
• Bruising
• Lacerations
• Malnutrition
• Fear
• Depression

Most situations develop due to the facility's inability to attract and keep quality, skilled staff, as well as inadequate training and understaffing.  

Nursing home neglect can take many forms, from failure to provide medical care for both physical and mental health needs, to simply protecting the resident from health and safety hazards.  A resident has the right to attain or maintain the highest practical physical, mental, and psychosocial wellbeing.  When this standard is not met, more often than not there is a case of negligence.  

You will be covered by Workers' Compensation Insurance if your motor vehicle accident occurred while you were working.  Workers' Compensation Insurance is a primary coverage.  We will also have you file a No-Fault claim with the insurance carrier, to protect you in the event that the Workers' Compensation Claim is denied.  Workers' Compensation is a state mandated program which permits a person injured at work to file a claim with the Workers' Compensation Board, which will pay medical expenses and up to two-thirds (2/3) of the employee's average weekly wage.  Applications for Workers' Compensation Benefits can be found at your employer.  Most of the time Workers' Compensation benefits will be paid without a problem, at least initially.  In most cases we will assign you a Workers' Compensation lawyer to make sure you are receiving all benefits to which you are entitled.

New York State law allows a driver to carry as little as $25,000 in liability insurance.  Often this simply is not enough to compensate someone for a serious injury. The first thing that we need to do is make sure that there is no other coverage available. We will make sure that there is no excess or umbrella coverage insuring the negligent driver. Additionally, we will review your own policy to see if you purchased underinsurance (SUM) coverage. This type of insurance coverage permits an injured party to collect under their own policy if the negligent driver has insufficient coverage. Not all clients buy this coverage, so we will have to look at your declaration page and policy immediately. If you do have underinsurance/SUM coverage, you are permitted to collect under that coverage after you receive the full policy limits from the responsible driver. Sometimes your SUM carrier will dispute the claim and we end up in a dispute with the company. That dispute is sometimes settled by arbitration, and sometimes settled in court. The attorney handling the file will discuss that with you at the appropriate time. 

Yes.  You have an obligation, as a recipient of benefits, to cooperate with the No-Fault company.  You may have to provide a written or oral statement.  You may also have to submit to a periodic medical exam scheduled by the insurance company. Your failure to cooperate can result in a loss of benefits. 

You may still be eligible to collect No-Fault loss wage payments.  If you are able to produce evidence from an employer that you would have been called back to work or received a job if you were healthy, then we should be able to force the No-Fault carrier to pay your lost wages.  If you were collecting unemployment benefits at the time of the accident, the No-Fault carrier generally will pay those benefits.  

You can still collect No-Fault loss wage benefits, but you must document your income with tax records, financial statements, or other records.  It may take more time to document your loss, but your persistence will pay off. 

As part of your application for No-Fault benefits you will provide all of your work information to the No-Fault company.  They will confirm your employment status and salary with your employer. Checks will be sent once a month only. The No-Fault company usually will require periodic reports from your doctor indicating whether you can return to work. 

Whenever you receive treatment please have the healthcare provider send the bill directly to the No-Fault insurance company.  You should always have handy the name and address of the No-Fault insurance company and the claim number the company assigns to you. Most health care providers know that the bills must be sent to the No-Fault company within 30-days of the service being provided. 

No-Fault law provides payment for the following:

1. All necessary doctor and hospital bills and other health services, payable in accordance with a fee schedule established by the New York State Insurance Department;

2. 80% of lost wages up to a monthly maximum payment of $2,000 (or higher if you purchased such coverage) for up to three (3) years following date of the accident.  Please remember that if you are also covered by New York State Disability Insurance through your employer, you will have to file that claim.  You will receive both No-Fault and New York State disability payments totaling 80%. Therefore, the No-Fault carrier reduces the amount they will have to pay you if you are also collecting disability;

3. Up to $25 per day, for a period of one (1) year from the date of the accident, for other reasonable necessary expenses that you incur, such as the cost of hiring a housekeeper or necessary transportation to and from a health service provider.  It is important that you get receipts for all such payments. You must also keep track of your mileage. These expenses must be submitted within 30 days from incurring the expense in order to receive payment; and

4. A $2,000 death benefit, payable to the person that dies as result of a motor-vehicle accident. 

Every injured person must fill out a proper application as required by the individual insurance company.  Most of the time you can fill out the application on your own, but we will be happy to assist you should you have any questions. The application for No-Fault benefits must be filed within 30 days of the motor-vehicle accident. 

No-Fault is New York State's mandatory insurance program which requires that the insurance company for the vehicle you are driving or are a passenger in, will pay all your medical bills and a portion of your lost wages (See below) that are related to the motor-vehicle accident.  Pedestrians and bicyclists will be eligible for No-Fault benefits from the insurance company for the vehicle that hit them. Motorcyclists are not a part of the No-Fault system. 

The No-Fault company will hire a physician to examine you.  This doctor is not treating you. He/she will only be examining you, and will report back to the insurance company only. You are able to get a copy of the report, upon your request, especially if the report is used to deny your benefits. Please remember that the physician will be observing you from the time you enter until the time you leave. Unless you have x-ray or MRI films in your possession, you do not have to bring anything to the exam. 

Usually we encourage you to talk to the No-Fault company as a much as you need.  However, often you may be met with resistance from the company on a certain issue. Whenever you are unsure of what to say or how to proceed, please contact us immediately. Remember, although the No-Fault company is required to pay your benefits, they will try to decrease or terminate your benefits as soon as possible, so as to save costs.  Our job is to protect your rights, and we sometimes end up in dispute with the No-Fault company. 

The insurance company will pay No-Fault benefits until one of the following occurs:

1. Your limits are exhausted.  Every injured person will be covered up to at least $50,000 dollars in No-Fault benefits.  Once that amount is paid--and there are no other benefits are available-- the insurance company's obligation ends. This is true even if still you still have ongoing treatment and care. You maybe eligible for additional No-Fault benefits.  This is sometimes referred to as additional personal injury protection (APIP) or optional basic economic loss (OBEL). We will review all potential policies that may cover you.  If there are additional benefits, we will help you apply for those as well;

2. The carrier determines that you do not need treatment or care, or are no longer disabled from your employment.  This can only be done after the company has had you examined by a doctor, chiropractor, etc. This determination can be challenged, but the process can be lengthy. (See below);

3. One year has passed on a claim for mileage, extra, or incidental expenses.  The company only has to pay such expenses for one year from the date of the accident; or

4. Three years have passed on a loss wage claim.  The No-Fault company only has to pay loss wages for a period of three (3) years from the date of the accident. 

The value of a personal injury case depends upon many factors.  The attorney in charge of your file will speak to you directly on this issue, once we have all of the facts. Some of the factors we look for are: the nature, extent and the severity of your injuries; what your physician's might have indicated in their reports with respect to permanency; whether the injuries can be proven to be a direct result of your accident (as opposed to some other event in your life); whether we can prove that the other driver is totally at fault (your percentage of fault will reduce the value of your case); and, finally, the limits of the insurance carried by the other driver, and you. (see below). 

Damage to your car is referred to as property damage.  Most of the time clients carry collision coverage on their insurance policies. If you have collision coverage, you should submit the property damage claim to your insurance company. They will usually inspect the vehicle and deal directly with you. Most of the time this is handled without our involvement. If you are required to pay a deductible, your insurance company will seek to have you reimbursed by the other driver's insurance company.  As always, call us if you have a problem. If you did not purchase collision coverage on your insurance policy, you will have to submit the property damage claim to the other driver's insurance company. They will evaluate the damage and try to settle with you. Again, call us if you have any questions. Never sign a release without having us review it.  We will quickly determine if the release covers only to property damage, and not your personal injury claim. 

No.  Remember, your personal injury case is separate and distinct from your No-Fault claim.  The settlement of your personal injury claim does not conclude your No-Fault claim.  In fact, we often see a No-Fault claim extending far beyond the conclusion of a personal injury claim.  This is particularly true in cases involving continuing medical treatment. As long as the doctor treating you relates your treatment back to the injury from the accident, No-Fault carrier is required to pay.  This assumes that the benefits were not terminated or exhausted for some other reason. 

Yes.  Remember, the company can reduce your lost wage benefits by any amount that you receive from any other source of payment (for your lost wages). They can deduct any payments that you receive from New York State Disability. They can also deduct any payments that you receive from Social Security Disability. There is a provision in the standard No-Fault policy that requires you to apply for these benefits.  In fact, during the application process, many carriers will require you to sign an agreement for you to pursue them. Social Security Disability is a program financed and administered by the Federal Government which pays a monthly sum to a person who has been determined by the Social Security Administration to be completely disabled from engaging in any form of employment.

Basic No-Fault benefits do not have to be repaid to the insurance company.  If you collect additional No-Fault benefits, sometimes referred to as additional personally injury protection (APIP), you will have to repay these benefits.  In fact, during the application process for APIP benefits you will be asked to sign a subrogation agreement, which will remind you of your obligation to repay APIP benefits. 

If you do not have any health insurance and No-Fault has been denied or terminated, we encourage you to apply for all social services through your county Social Service Department.  The Social Service Department will have a lien on the proceeds of your personal injury case. New York Social Service Law mandates that the county be paid back out of the proceeds of your lawsuit. If you are recipient of social service benefits, you will be asked upon application if you have any lawsuits. You are required to give a truthful answer and provide our name and address to the Social Service department. We will then receive a notice of lien. The law actually prohibits us from releasing money to you until the social service department is paid.

1. If the benefits were terminated because you exhausted your coverage and there are no other No-Fault policies covering you, then there is no recourse against the insurance company.  In that case, you will have to submit medical bills to your private health insurance company (Independent Health, Community Blue, etc.). These companies will generally not pay any medical costs associated with a motor-vehicle accident while you are eligible for No-Fault benefits.  If your benefits are exhausted (or denied), however, they will usually pay. The private health insurance companies will require proof that the benefits were exhausted (or denied). The No-Fault insurance company is required to send you a notice that the benefits are exhausted (or denied).  You will have to provide that notice to your private health insurance company; and

 2. If the benefits were denied because the No-Fault company has determined (based upon their examining doctor's opinion) that medical treatment is no longer needed, the treatment is not related to the motor-vehicle accident, or that you are able to return to work, you have a right to contest this denial.  There are two ways to do this first. First, a lawsuit can be commenced against the insurance company.  Second, an arbitration proceeding can be commenced.  Generally, our practice is to delay arbitrating the denial of your No-Fault benefits until your accident case is over.  The reason for this is that an adverse arbitration decision could be harmful to your lawsuit. 

We will have to check any policies that may cover you.  For example, if you are driving your own vehicle, we will examine your policy and other family auto policies. If you are passenger in a vehicle owned by someone else, we will review both the policy covering the vehicle and your own private auto policy. Providing us with a copy of your declaration page and policy will greatly assist us in doing so. 

Not always.  In many instances your state law provides special protection for workers injured on construction sites.  These are referred to as worksite safety statutes.  Each state is different, but the general framework of these statutes allows for the injured worker to commence a lawsuit against a responsible party in an effort to obtain damages for the injuries sustained in the accident.  For example, in New York, §§ 200, 240(1) and 241(6) of the New York State Labor Law provide special protection for construction workers injured on the job.  Once we have a full understanding of the manner in which your injury occurred, we are then able to determine whether you can bring a claim under one of these statutes.