Many times when people are involved in a work accident, they will aggravate an old injury. We oftentimes hear concerns from these individuals that the Workers’ Compensation (“WC”) insurance carrier MAY NOT cover medical treatment for these types of re-injuries. So the question in South Carolina becomes, is a work accident that aggravates and/or makes worse a pre-existing injury covered by the employer’s WC insurance carrier?
The simple answer to this question is YES. According to S.C. Code Ann. § 42-9-35 -
(A) The employee shall establish by a preponderance of the evidence, including medical evidence, that:
(1) the subsequent injury aggravated the preexisting condition or permanent physical impairment; or
(2) the preexisting condition or the permanent physical impairment aggravates the subsequent injury.
THIS ARTICLE WAS WRITTEN BY ROY TRAMMELL, a Workers' Compensation attorney.
A recent Forbes article written by Steve Cohen entitled, "On Tort Reform, It's Time to Declare Victory and Withdraw", debunks the myths set forth many years ago when the catchy phrased initiative first started. Given the many states that have passed those "reforms", aka insurance company dream goals to make more money, quantitative information is available to actually measure results. Since many of you went along hook line and sinker, let's see what you have done to yourselves. Drum roll please....
This Forbes article sites an investigating in The New England Journal of Medicine entitled, "The Effect of Malpractice Reform on Emergency Department Care" which determined:
Mr. Cohen goes on to write that:
This latest study follows numerous others that deflated other tort reform myths: that making it harder for victims to file medical malpractice lawsuits would reduce the number of “frivolous” suits that “clog the courts;” that imposing caps on the damages victims could receive would reign in “out of control” juries that were awarding lottery-size sums to plaintiffs; and that malpractice insurance premiums would fall, thereby reversing a doctor shortage caused by specialists “fleeing the profession.”None of these promised benefits became reality. That’s because the alleged problems were themselves non-existent.
While insurance premiums haven’t gone down, their price increases in tort reform states have gone up a little slower than in non-reform states – the lag is between 6% and 13%. That hasn’t constrained the insurance industry from showing record profits. Average returns for malpractice carriers hover around 15.6%, far better than the 12.5% for the property/casualty segment. And the malpractice insurers’ loss ratio – the percentage of claims to premiums — is a remarkably low 61.1%.
In 1999 the Institute of Medicine at the U.S. National Academy of Sciences published its seminal study,"To Err is Human", which concluded that between 44,000 and 98,000 patients are killed (and many more injured) in hospitals each year due to medical errors. That number – which is more than automobile and workplace accidents combined – doesn’t include deaths in doctors’ offices or clinics – such as the one where Joan Rivers recently died. By 2011, a study in "HealthAffairs" estimated the number of avoidable deaths was probably closer to one million.
It's unfortunate that so many Americans were duped by the evil insurance companies but there is still hope for change. Remind your legislative representatives that these myths have been debunked and tort reform is never a good idea.
The judicial system is in place for a reason and that is to allow a jury of your peers to hear the facts and evidence presented by our rules and make the most informed decision.
Trammell & Mills Law Firm, LLC does not handle medical malpractice cases but we know several good law firms in the area that do, if you need assistance. However, we can not stand to see Americans constantly steam rolled by insurance propaganda. Start educating yourselves on the facts, not on the fluff and feel good.
Many times we see potential clients fail to follow through with a Workers’ Compensation claim because they are “job scared.” Some of the individuals may have a promising but new career with their employer, other times the individual has been employed with the same company for 20+ years and fear losing a good job. If you have been injured on the job and are job scared, please read this before deciding NOT to pursue a Workers’ Compensation claim.
“no employer may discharge or demote any employee because the employee has instituted [in good faith]. . .” a Workers’ Compensation claim.
The triad of counties encompassing the Golden Corner of South Carolina, Anderson, Oconee, and Pickens, only have one (1) attorney recognized by Super Lawyers as a Rising Star in 2015- Congratulations Trey Mills.
Floyd S. Mills III, aka "Trey", has been recognized again in 2015 as a Super Lawyers Rising Star in South Carolina . As a partner at Trammell & Mills Law Firm, LLC, Mr. Mills practices only personal injury law which encompasses anyone harmed by the negligence, ignorance, or omissions of others. Trey loves fighting against faceless insurance companies that only seem to know one word, "No."
The motivating factor that caused Trey Mills to become a lawyer was when he was dying of leukemia, more specifically ALL, at the age of 17 and heard his mother constantly yelling on the phone with insurance providers pleading with them to process payment to the wonderful medical facilities, medical workers, and doctors that were trying to save his life. The only reason that evil insurance company didn't make payment, delayed payment, or tried to deny payment was because it was very expensive to cover the costs of a dying human and insurance companies are in business to make money not save lives. Well fortunately, Mr. Mills lived but more importantly others impacted by the evil insurance companies can now have someone that is truly:
The selection process for being selected into this group is as follows:
The selection process for the Rising Stars list is the same as the Super Lawyers selection process, with one exception: to be eligible for inclusion in Rising Stars, a candidate must be either 40 years old or younger or in practice for 10 years or less. All attorneys first go through the Super Lawyers selection process. Those who are not selected to the Super Lawyers list, but who meet either one of the Rising Stars eligibility requirements, go through the Rising Stars selection process. While up to five percent of the lawyers in the state are named to Super Lawyers, no more than 2.5 percent are named to the Rising Stars list.
Don't fall victim to the "There Ain't Nothing Wrong With the Floor" defense. If you trip over an object on the floor at work and fall, you are almost certain to be covered by the workers’ compensation laws. But what happens if you simply fall at work on a completely level floor or on a smooth rug and there is no obvious cause for your fall? What if your employer responds that you can not get workers’ compensation benefits because “there ain’t nothing wrong with the floor” to have caused you to fall? Is the employer right?
RELATED ARTICLES by Ernie Trammell:
Many of us remember the "Just Say No" Campaign in an effort to fight the war on drugs. Green shirts were promoted among children with the popular saying to try and thwart our small minds from saying "Yes" to experimental drugs. In the name of public policy a governmental agency created a slogan, provided t-shirts to poor children and pushed their agenda through the public education system keeping many from being able to enjoy the high of quality street drugs.
Apparently this "Just Say No" campaign was not just one for the war on drugs but was also accepted by major insurance companies such as Progressive, GEICO, Liberty Mutual, Safeco, GAINSCO, and Sentry. Just recently, guilt ridden insurance adjusters have come forward admitting that anytime they would say the word "Yes" on the phone with a claimant, they would be fined $500.00. Adversely, the more times they said the word "No" the more opportunities they would have for a professional advancement.
Many of you have probably encountered this type of interaction after being involved in a motor vehicle collision or having an insurance claim against one of these companies when all the adjuster on the other end of the phone would say is "No". A recent transcript was released in the article detailing this incident and illustrated how the slogan worked to make billions after taxes for these companies: (Person Injured- PI) & ( Adjuster Saying Slogan - ASS)
PI: I was just injured by one your insureds when they slammed into the back of us while drunk and driving with a suspended license.
ASS: No, you didn't. Not possible. No way that could happen.
PI: Hello? I'm sorry what did you say?
PI: No, what?
ASS: No. No means no. No, no, no.
PI: We seem to have a disconnect here. I have an accident report showing what I just told you and video on my phone showing your insured stumbling out of the car with two cases of beer and trying to make a run for it. He didn't get far before he fell face first into a ditch and just started drinking again.
ASS: Sir, we do not provide insurance to people that drink and do bad things. If we do, we say they didnt do it, we then deny the claim, delay it, and defend it in court just to prove to you we mean no.
If you have an experienced this kind of interaction with the above companies, please give us a call as we are looking for class members to fight against this injustice. It may be the first day of April, aka April Fools Day, but we are still here to help you and believe this is real.
OTHER ARTICLES WRITTEN FOR THIS SPECIAL DAY
A recent article by NPR illustrates what is wrong with any legislation put forth in the name of "reform". This article provides quantitative evidence and examples of why the workers' compensation system is broken. Our very own Ernie Trammell has provided articles about South Carolina Workers' Compensation issues writing, "Injured at Work in South Carolina? What you need to know. (Part 1)" & "Injured at Work in South Carolina? What you need to know. (Part 2)" .
For an in depth analysis, historic background on the intent, and current state of workers' compensation laws, you should educate yourself with this article. More importantly, you should arm yourself with an attorney if you have a workers' compensation claim:
The Clemson football team had the NC State game handled by halftime so my wife and friends convinced me that a walk to the Esso on this beautiful afternoon was a good idea. Trying to enjoy the time my wife and I have together with her out of nurse anesthetist school now and no kids, I obliged. The ladies were quick to try and find a restroom not made of plastic and almost full, while the men were expected to work through the crowd at the bar for adult beverages. Having attended Clemson, I was familiar with the Esso and strategic spots to approach for the best leverage and line of sight with the bartender. Not to mention, I could now afford to hold out a $20 bill.
As I approached my honey hole of a spot at the bar another gentleman in front of me turned around. I am about 6'2" and I had to look up a good many inches to him. He had apparently been there all day for this 3:30pm kick off based on the swaying motion I observed as he double fisted two orange Bud Lights. I was unclear of his intentions as he shouted and pointed at me saying, "I know your face!". I made some comment that I have a familiar face and he then asked if I was in sales. I said no and continued to try and get the drink order in. Then he said, "What do you do then?". When I said, "I am a lawyer." That seemed to help him clear all the clouds in his head and put it together as he shouted, "You're a *& liar!" Well, alcohol or no alcohol those are usually words that help escalate things and his three friends turned around and I felt my wife push past me in between us and start to divert the conversation.
We were both Clemson fans and I can not stand to see in fighting. I was relatively calm for the situation and simply asked why he would say that. He went on to explain in a round about way that he was a juror member on a recent trial I had in Westminster Magistrate Court in Oconee County where my two clients were liars. My bell went off then and I remembered his disinterested looks, attempts to raise my voice to wake him up during the trial, and total apathy in the whole trial process he was invited to participate in that work day.
Realizing the gold in this opportunity to talk with a juror after a trial where inhibitions were low and honesty high, if not unfiltered, I asked what he disliked about the trial. He listed several things:
I tried to get him to be more specific but he could not remember the facts of the case or anything about the case. (It was a motor vehicle collision where the at fault driver pulled out into traffic and then immediately backed up into my clients after realizing he pulled in front of someone else. The insurance company for the at fault driver played hardball and made offers lower than the emergency room bills so we had to try the case). Plus if you have ever been in the Esso during a game, it can be difficult to carry on an indepth conversation.
As I tried to pull more information out of him to improve my future chances of not being called a liar simply because I am an attorney, he finally softened up a little bit and said: "You know, I will give it to you though. You made me think. When I came in and sat down I immediately knew your clients were lying. (He made this decision prior to any parties being named plaintiff or defendant or hearing any attorney speak). He then said, "After you presented the case with your 'silver tongue', you had me thinkin...but then I just knew your clients were lying."
I thanked the man for his feedback and bought him another orange Bud Light to go with the two in his hand. He quickly emptied one to make room for the extra and said I wasn't that bad after all. He told me not to worry because I still got paid and I quickly put that myth to bed to help him appreciate the generous orange Bud Light he had just received from the contingency fee lawyer that the jury found in favor of the other party. Which in laymen's terms means that lawyer (me in this case) didn't get paid or reimbursed for any time and/or costs in the case.
It gave me a fresh outlook at my cases and reminded me;
A pedestrian, or any person on foot, has duties just like those driving motor vehicles to be responsible, however, sometimes the higher duty and responsibility remains with the driver of the motor vehicle to be more alert and observant.
South Carolina Drivers' Manual is where we all started and had to learn the "rules of the road" before being granted permission to get our license. After the introduction, the manual goes into "General Information", more specifically the subsection entitled, "Sharing the Road" states:
It is your responsibility as a driver to be on the lookout and to take every precaution possible to not injure a person on foot. If you see a vehicle, pedestrian or children near the road, you should slow down and be prepared to stop. (General Information p.45)
The South Carolina Code of Laws sets forth a few reminders for all of us drivers on the roadways as it pertains to pedestrians:
SECTION 56-5-3230. Drivers to exercise due care.
Notwithstanding other provisions of any local ordinance, every driver of a vehicle shallexercise due care to avoid colliding with any pedestrian or any person propelling a human-powered vehicle and shall give an audible signal when necessary and shall exercise proper precaution upon observing any child or any obviously confused, incapacitated or intoxicated person.
SECTION 56-5-1520. General rules as to maximum speed limits; lower speeds may be required.
(A) A person shall not drive a vehicle on a highway at a speed greater than is reasonable and prudent under the conditions and having regard to the actual and potential hazards then existing. Speed must be so controlled to avoid colliding with a person, vehicle, or other conveyance on or entering the highway in compliance with legal requirements and the duty of a person to use care.
(F) The driver of a vehicle shall drive, consistent with the requirements of subsection (A), at an appropriate reduced speed when approaching and crossing an intersection or railway grade crossing, when approaching and going around a curve, approaching a hillcrest, when traveling upon any narrow bridge, narrow or winding roadway, and when special hazard exists with respect to pedestrians or other traffic or by reason of weather or highway conditions.
South Carolina case law follows in line with the before mentioned rules in stating:
No one may truly know what happened during the incident. However, this is a time to remind all of us who get behind the wheel to just remain alert and vigilant to our surroundings.