"When my husband was buried alive, he came out a different man." That is how Harry's wife described what happened to Harry in the days and months that followed the collapse of the trench he was working in. Harry had grown from a gifted young athlete to a strong a dependable laborer, a loving family man and a good provider. He was beloved for his gift of gab.
When the walls of the trench fell in on him, he emerged a changed man. The gift of gab was silenced and his spirit dampened. The physical gifts that he had relied on all his life were taken away. He would eventually walk with a cane. He even had to learn how to read, write and speak again. The dependable provider became child-like and needed to be provided for.
Jon Warren assembled a team of engineers and construction experts to prove that the trench was not properly shored and secured. But the contractor who was running the job site knew if they could place the blame on Harry's employer, they would not be held at fault. Worse yet, Harry would not be able to recover because his employer was legally immune and only responsible for paying Harry's workers' compensation benefits.
Jon engaged in extensive discovery, taking numerous depositions and sifting through thousands of pages of documents. Through these exhaustive efforts, he was able to argue that the contractor in control of the site violated OSHA standards and actually directed and controlled the part of the project involving the trench and the shoring.
The contractor also contested Harry's claims that he had suffered a devastating traumatic brain injury. They argued that Harry's intellect was limited even before the accident. Working with a medical team of specialists including a neurologist, a rehab doctor, a neuropsychologist and a nurse, Jon was able to present medical documentation substantiating the severity of Harry's brain injury.
But the battle was not yet won. The contractor's lawyers filed motions with the judge assigned to the case arguing that the case should never make it through the court room doors and the case should be dismissed. Relying on the information obtained in discovery and the team of engineers and construction experts, Jon successfully filed a response to the contractor's motion that convinced the judge a jury should decide the case.
Facing the possibility of having to explain its failures to a jury, the contractor agreed to a settlement in the millions of dollars. The money did not restore Harry to the man he was before, but it did allow him to once again provide for his family.When Company Profits Trump Safety
Our client was injured while entering a hotel bath tub/shower. She slipped and fell seriously injuring her wrist, which had previously been operated upon. After extensive physical therapy and 3 surgeries, she was left with permanent loss of range of motion of the wrist.
Hotels have resisted industry standards that require safety features such as grab bars and non-slip tub surfaces in non-handicapped rooms. Experts have criticized existing standards as out of date and inadequate. But the hotel industry has resisted any new standards because of the cost of such simple safety measures.
The lack of industry standards presented an obstacle to proving that the hotel was at fault for our client's fall. The hotel argued that its tubs were in compliance with existing industry standards. They also argued that our client failed to take proper precautions when entering the tub.
After intensive investigation and discovery, however, Jonathan Warren learned that the hotel was aware its tubs were slippery when wet. It had applied slip resistant materials to the tub previously. But then the hotel failed to re-apply the materials in compliance with the product's standards and instructions. Through consultation with experts, Jonathan established that the failure to maintain the slip resistant surface the hotel previously installed was a substantial factor in causing our client's injury.
Faced with our firm's ability to prove that it knew of the danger of the slippery tubs but failed to properly maintain its efforts to correct the danger, the hotel settled for over $200,000.00 before trial. Hopefully it will re-think the cost of installing and properly maintaining simple safety features in the future.
Just In The Nick Of Time…A Cautionary Long Term Disability Tale
Sandy was confused. She was uncertain what her long term disability carrier wanted now. She decided to call her lawyer. Her lawyer told her to call Terry McGraw, so she did…just in the nick of time.
Sandy had been unable to work after developing chronic regional pain syndrome (CRPS) following a car accident. She had been getting long-term disability benefits from the policy her employer offered as a benefit. She had signed up for this disability insurance and dutifully paid the premium out of every paycheck just to protect herself against a time like this.At first, the insurance company approved her application for benefits. Her efforts to treat her CRPS and return to her high paying job selling financial products for a regional bank led her to many specialists. They ordered infusion treatments involving a drug that caused hallucinations. In spite of her ongoing aggressive treatment, the insurance company terminated her benefits because they concluded she could return to work.
The termination letter she got from the insurance company talked about the information that the insurance company needed to reconsider their decision. It looked like they just needed some medical records from her doctor. Sandy was smart. She knew she could get some records from her doctors and pass them on. So she appealed the termination, got the records, and sent them to the insurance company.
The insurance company sent the file to an outside doctor for review as they normally do. Lucky for Sandy, that doctor asked for more specific information from her treating doctor. When the insurance company passed the request along to Sandy, she did not know how to respond. That is when she called her lawyer.
When Sandy consulted Warren & McGraw, she only had a few days left to respond to the insurance company’s request. Terry explained that her one and only opportunity to build a convincing case was about to come to an end. Terry had her reach out to the insurance company and ask for a few more weeks. (He was afraid the request might be declined if the insurance company knew that she was being helped by a lawyer.)
Then Terry went to work. He arranged to get updated medical records from all Sandy’s doctor’s, not just the doctor the insurance company had asked about. He knew that long term disability companies frequently deny CRPS and other pain claims because pain cannot be measured and the medical records usually lack objective data. So, Terry arranged for her to get two different types of medical tests that would measure and quantify her level of physical function (functional capacity evaluations). He called in a favor and secured a vocational expert consultation and report in the short amount of time allowed.
Terry also understood that the insurance company forms sent to Sandy up to that point typically lead people to provide very brief answers that lack the kind of detail that is needed to prove disability. He spent hours conducting a recorded interview of Sandy that he turned into a lengthy sworn statement. The statement detailed all of the difficulties Sandy was having, all the aggressive treatments she had pursued, and how the CRPS prevented her ability to work.
Armed with all that evidence, Terry prepared a lengthy letter arguing why Sandy continued to be disabled. Terry hoped that all his work would cause the insurance company to change its decision and continue to pay Sandy.
But Terry had also planned ahead. He knew that the law would be very favorable to the insurance company if the insurance company refused to reinstate benefits. He knew Sandy would not be able to present any additional evidence about her case if he appealed to federal court. He knew the federal judge assigned to any appeal would not be free to substitute his own judgement whether Sandy was disabled. He knew the judge would be required to uphold the termination unless he could prove the termination was “arbitrary & capricious,” a very difficult standard to meet. He had hurried to gather all the evidence he did so Sandy would have the best chance of meeting that high standard, if she needed to appeal.
Sandy’s story did not surprise Terry. He had been unable to help many people in the past because they had waited to contact him only after the opportunity to build a persuasive file had closed. Fortunately, Sandy had reached out for help just as her window of opportunity was closing. Fortunately, with all of the new medical data and opinions that Terry obtained, the insurance company decided to reverse the termination and pay Sandy….just in the nick of time.
If you are fighting with a long term disability insurance company, and you want to learn how they trick people into waiting to go to a lawyer until it is too late, call Terry. He will be glad to explain what you need to do to get the benefits you deserve.