IN THIS AGREEMENT, the undersigned, hereinafter designated as “Client(s),” does retain BUSH LAW FIRM 138 E. 12300 S., Suite C-174, Draper, UT 84020 801-619-3771 , hereinafter designated as “Attorney/s,” to represent him/her in a claim for damages arising from an accident on or about ________________.

The terms of this Agreement are as follows:

1. Attorney shall be paid 35% of the total amount recovered, i.e., before payment of any outstanding medical bills and/or expenses (accident report, in-house photocopying, postage, faxes, photographs and courier charges are included in the 35%). Once suit is filed or arbitration or mediation is agreed upon, Attorney shall be entitled to 40% of the total amount recovered. If case is appealed, Attorney shall be entitled to 45% of the total amount recovered.

2. If Client agrees to payment of settlement over a period of time, Attorney shall be entitled to payment in full at time of settlement.

3. (a) In addition to the fees listed above, the Client is liable to Attorney at the conclusion of the claim for all reasonable expenses. Expenses are defined as expenses of handling case and include, but are not limited to: medical reports, records, court filing fees/costs, service fees, expert witness fees, deposition costs and, arbitration/mediation fees, etc. Expenses are deducted from Client’s portion of any settlement, verdict, or arbitration/mediation award, after deduction of attorney fees provided for in paragraphs (1) and (4). Authority is given to Attorney to incur expenses necessary to adequately pursue the claim. If no recovery is obtained, all reimbursements for expenses will be waived.
(b) Client is responsible for all medical bills he/she incurs. Client agrees that medical bills outstanding at the time of settlement shall be deducted from Client’s portion of the settlement and paid directly to the medical provider by Bush Law Firm for Client.

4. If Attorney helps Client collect no-fault benefits (PIP), including medical, lost wages and/or loss of household services benefits, Attorney shall be entitled to one-third of such amounts collected. A contingent fee will not be charged for the routine filing and recovery of undisputed PIP benefits. However, if PIP benefits are disputed or remain unpaid after a reasonable period of time and Client desires Attorney to help collect them, Attorney shall help collect PIP benefits and shall charge a one-third contingent fee for collecting same.

5. If other Attorneys are retained, all counsel shall share the attorney fee based on the amount of time (a good faith estimate of Attorney’s time shall be adequate), risk, expenses and contribution to results of the case. Attorney shall have the right to retain or associate other attorneys as Attorney deems appropriate.

6. To protect the Attorney’s rights to be paid, Attorney shall have a right to any proceeds generated as a result of his representation of Client. This agreement gives Attorney a lien upon Client’s claim(s), cause of action or counter claim.

7. (a) If this case goes to trial and Client is not happy with the result, Attorney is not obligated to represent Client in any appeal.
(b) If Client and Attorney disagree on anything in this Agreement, the dispute shall be resolved by the Utah State Bar.
(c) Client agrees that Attorney has made no specific promises or guarantees regarding the outcome of Client’s claim.

8. Client agrees to fully and promptly cooperate with Attorney and his/her staff in any matter related to this representation.

9. Client agrees to be honest and truthful with Attorney and his/her staff and not withhold any information.

10. RIGHT TO WITHDRAW – Attorney may withdraw from Client’s representation, and Client shall consent to said withdrawal if, at any time, Client:
(a) Insists upon presenting a claim or defense that is not warranted under existing law and cannot be supported by a good faith argument;
(b) The case is deemed by Attorney to be fruitless or economically inadvisable. In the event of withdrawal for this reason, Client shall not be liable to reimburse Attorney for any time expended on the claim;
(c) Deliberately disregards an agreement or obligation;
(d) Fails to be fully and promptly cooperate with the Attorney and his/her staff in any matter related to this representation;
(e) Fails to be truthful or withholds information from Attorney or his/her staff; or
(f) Fails to accept and follow Attorney’s sound legal advice.

11. Client understands Attorney will investigate Client’s claim, and if, after so investigating, the claim does not appear to have merit, then Attorney will have the right to cancel this Agreement. If the Client terminates this agreement for any reason, other than Attorney’s negligence or inability to act, the Client agrees to pay the Attorney for services rendered in the amount of a reasonable and equitable portion of the fees as described above on a pro-rata basis and all reasonable expenses incurred.

12. Attorney is given power of attorney to execute all complaints, claims, contracts, checks, settlements, drafts, releases, compromises, releases, verifications, dismissals, deposits, affidavits, and orders as could the Client.

13. Client authorizes Attorney to use his best judgment in negotiating, including selecting demand and counter offer amounts.

14. The contract embodies the entire agreement of the parties hereto with respect to the matters herein contained and it is agreed that the terms, conditions, and stipulations hereof shall not be modified or revoked unless by written agreement by both parties and attached hereto and made part hereof.

15. I don’t object to sharing responsibility for the legal representation on this case nor do I object to his/her sharing of the attorney fee provided it doesn’t cost me anything extra.

I have read the foregoing Agreement, understand it, agree to all parts of it, and agree to be bound by it.
Date______________ Client Signature_____________________
Date______________ Attorney Signature__________________

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Breasts Win Freedom

It is a cliche (actually its scripturally based,) that “the truth will set you free.” (Although mentioning “Sacred Writ” in connection with this story is probably “bad form”)

We here at Utah Personal Injury Attorney usually focus on American injury law but here’s a “big” story we couldn’t resist from the Japanese legal system.

Japanese pin-up model, Serena Kozakura, 38 years old, was charged with breaking into her ex-boyfriend’s apartment by kicking a hole in his door and then crawling through the hole.

Serena was cleared of all charges after her defense counsel held up a plate showing the size of the hole and arguing that it was not large enough for a 44-inch bust to squeeze through.

“I used to hate my body so much, but it was my breasts that won in court”, Serena said.

Judge Kunio Harad of the Tokyo High Court threw out the guilty verdict, saying there was reasonable doubt over the man’s story.

The story is from Wierd Asia News where you can find more about the case including a video of Serena.

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Psychiatric Drugging of Children Intolerable-Betrayal of Innocence
The following is the third and final article in the series Psychiatric Drugging of Children. Part 2 explains how a -year-old girl named Rebecca Riley died of an overdose after being diagnosed with ADHD and bipolar disorder by Dr Kayoko Kifuji, at Tufts New England Medical Center in Boston, and placed on a three-drug cocktail….

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SSRI Birth Defects: A Litany of Heartaches
As the controversy over Paxil birth defects and other anti-depressant related birth defects continues, so too does the heartache of parents whose children were born suffering from these defects. Parents like Jenny, Sheila, Angela, Theresa, and Jennifer, all of whom had children whose heart conditions are likely the result of selective serotonin reuptake inhibitor (SSRI) and selective norepinephrine reuptake inhibitor (SNRI) exposure in the womb, also known as SSRI birth defects.

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13 Ways to Meet Serious Impairment & Increase Value of Auto Accident Cases

1) The Plaintiff Independent Medical Examination:
The most important strategic change after Kreiner for Michigan personal injury attorneys helping people who have been injured in car accidents is the plaintiff independent medical examination. What can the PME do to help a lawyer and an accident victim avoid summary disposition under serious impairment? A PME can:

* Create a factual dispute concerning the nature and extent of a plaintiff’s injuries, surviving defense motions for summary disposition.
* Increase the value of the underlying case by offering opinions that will increase Colossus values.

Regarding the list of five “non-exhaustive factors” that the Supreme Court listed that “may be of assistance in evaluating whether the plaintiff’s “general ability” to conduct the course of his normal life has been affected,” the plaintiff’s independent medical examination can and should offer opinions on each:

1. the nature and extent of the impairment
2. the time and length of treatment
3. the duration of the impairment
4. the extent of any residual impairment
5. the prognosis for eventual recovery

2) Use the Medical Literature: Michigan personal injury lawyers should arm his or her experts and the treating doctors with the authoritative medical literature to help explain the full extent – and the residual impairments and future prognosis – of his client’s injuries. Much of the published, peer-reviewed medical literature is helpful to explain the severity and permanency of many injuries. Bone fractures often put people at risk to post-traumatic arthritis, tendon and ligament injuries often will require additional surgeries and medical treatment, bulging and herniated disks can further rupture, causing serious and permanent injury, and perhaps even paralysis if not surgically corrected. It is up to the plaintiff personal injury lawyer to present a full and clear picture of what the accident victim is now at increased risk for or more susceptible to after a serious car accident.

3) Using the PIP Case: A car accident victim’s failure to pursue replacement services has been noted in several unpublished cases in Michigan as evidence that the accident victim’s injuries did not constitute a serious impairment of body function. Although our Supreme Court has indicated that no one factor is dispositive, i.e. that the duration of the impairment is short, does not necessarily preclude a finding of serious impairment, clearly if the plaintiff is employed, the more time off work the better. The inverse is also true, as Straub lost two months from work and then returned 25 hours a week for an additional three weeks before resuming full time employment and failed to meet threshold.

Too many good people, such as Mr. Kreiner, have rushed back to work prematurely after a serious car accident, in pain and on strong medications and in a reduced work capacity. They have succeed only in making their injuries worse and in hurting, and often completely undermining the success of their auto accident case as the law in Michigan focuses most intently on the period of impairment after a car accident, and not on the pain caused by the injuries from the accident. Yet this happens time and time again because car accident victims do not fully understand that they can claim no fault wage loss for the first three years after their car accident.

Often ignored and not aggressively pursued by many Michigan personal injury lawyers, the PIP case can be instrumental in helping plaintiff attorneys survive the post-Kreiner fall-out:

A. A substantial period of replacement services and wage loss can help to show the nature and extent of the impairment and the duration of the impairment after the car accident. The PIP case can be used to help the auto negligence case survive summary disposition. It can be used to offer persuasive evidence on how the plaintiff’s general life has been impaired.

B. Many plaintiff attorneys who have had their case load impacted by tort “reform” will find PIP cases offer greater financial reward and are far easier to handle compared with strongly contested 3rd party auto negligence cases with minimum policy limits.

C. These accident cases are easier and have an easier threshold. Plaintiffs must show what is “reasonably necessary” for an injured persons care, recovery and rehabilitation.

D. Thousands of dollars in penalty interest and attorney fees.

E. Increasing settlement values with Colossus.

4) The Importance of Continuing Medical Treatment:
A. All five of the factors suggested by the Supreme Court are impacted by continuing medical treatment.

1. Documenting injuries by ongoing medical treatment illustrates the nature and extent of the impairment.

2. The type and length of treatment required is offered as one of the five factors in Kreiner.

3. The duration of the impairment is best illustrated by the need, or lack of, continuing medical treatment.

4. The extent of any residual impairment is specifically defined as physician-imposed restrictions, not subjective complaints or self-imposed restrictions by the plaintiff.

5. Opinions on the prognosis for eventual recovery of the plaintiff will be made by treating doctors, the plaintiff’s IME, and examinations at the request of the underlying 1st and 3rd party defense insurance companies or attorneys.

B. The Importance of “Pre-Suit”: The lawyer helping an auto accident victim in Michigan must focus on the first several months after the car accident. These first five or six months after an automobile accident is the critical time period when the foundation is laid for establishing a serious impairment of body function under Michigan law. The plaintiff attorney’s focus during these first six months should be in making sure that the auto accident victim is documenting his injuries and treating with the correct medical specialists. Not only will this help your client get better, hopefully, but it will also help to document the impairment caused by the injuries suffered in the automobile accident. The timing is crucial because it is usually in these first few months after a car accident when a person’s own no fault insurance company will try to set up their insured with an insurance IME doctor. Often these doctors are more concerned with saving the insurance company from their contractual obligations to pay for medical treatment and wage loss and less concerned with giving the person they are examining the benefit of the doubt. After an insurance cut-off, expensive but critically important medical diagnostic testing such as an MRI, or a referral to a medical specialist will be nearly impossible without no fault insurance to pay for it.

Obviously, a second concern of the personal injury lawyer is the period of time off work if the accident victim was employed before his car accident. There is no set period of time in Michigan that a car accident victim must be off work to have a “good” car accident case. However, a good lawyer must advise his client that the Michigan Supreme Court found that Straub’s three months off work was not sufficient, as a matter of law, to be a serious impairment of body function. Subsequent automobile accident cases have found six, seven and eight months off work to be inadequate and there is no telling, if Kreiner is not corrected by the Michigan legislature, where things might be six months to a year from now.

5) The Importance of Good Deposition Testimony: Lawyers tend to dread depositions. They can be so boring as to be mind-numbing as defense attorneys can go on for hours and hours, often in pursuit of nothing more than increased billables while defending the case. Yet after the 1995 legislative amendments and after Kreiner v. Fischer, depositions are more important than ever before in meeting serious impairment and increasing the value of auto cases in Michigan. There is simply no excuse for preparation. The lawyers in our firm, who specialize in helping people seriously injured in automobile accidents and do nothing else, still spend at least one to two hours preparing clients for their deposition, in addition to the hours spent before in client meetings and case analysis and review.

Examples of bad deposition testimony are found in many of the casualties after Kreiner v Fischer.

* In Kreiner v. Fischer, Mr. Kreiner never missed a day from work. He testified his limitations did not prevent him from doing his job, with minor exceptions. Mr. Kreiner also testified that although he could not hunt rabbits, he could hunt deer.
* In Straub v. Collette: Mr. Straub missed two months from work, worked 3 weeks at 25 hours a week, and then returned to work full time. He testified he was 99% better.
* In Hicks v. Trammer: The plaintiff testified he could do everything he wanted to do, other than missing one day of work and one hunting trip.
* In Herdus v. Knowles: The plaintiff testified about whether the injury interfered with normal daily activities “It might just a little, but not much.”
* In Howitt v. Billings: Plaintiff still worked, and “could do everything” except walking for long periods of time, some exercises, and some sports.
* In French v. Murphy: Plaintiff was still able to care for her children, perform household chores, but did not do aerobics any longer because “she ran after her kids all day long.”
* In Miller v. Purcell: Plaintiff testified she could still do “all the same activities” she did before the accident, never missed a day from her 40 hour a week job, cleaned her home, did household chores, but said she could no longer knit and had to type one-handed.
* In Lullo v. Heikkila: The plaintiff testified she continued to do the same activities as she had before the accident. The only activities that were affected were her reduced ability to still run, and some limitations on the types of exercises she could perform.

There is no substitute for time and preparation. Plaintiff attorneys must spend time with the client BEFORE the deposition to explain how the injuries have affected every arena of the plaintiff’s life. I would suggest at least 10 to 12 different examples of impairment, spread over the plaintiff’s work, recreation and hobbies, household activities and chores, sleep, and family activities.

6) Vocational & Functional Capacity Testing:
Functional capacity testing can help show how what may seem at first a “minor” injury after a car accident can have a serious affect on a person’s ability to lead their normal life. A detailed and scientific analysis of the components that make up a person’s activities of daily living, broken down to show the impact on performing various tasks after the injury as compared to before can be instrumental in showing the impact of an injury on the nature and extent of a person’s general life.

There are many well-supported functional capacity tests that can be used. The AMA Guide to the Evaluation of Permanent Impairment, the AMA Guidelines for Pain and Disability, Social Security Disability guidelines, functional testing such as the McGill Pain Questionnaire, electronic pain diaries such as PIPER that allow a person to record their pain levels throughout a day and night, the Zung Depression Index and others will be helpful in showing continuing restrictions and disabilities of the plaintiff.

Lawyers can present these test results by themselves. Or, a plaintiff personal injury lawyer can hire and use a certified vocational counselor, or a certified disability examiner to document the impairments from a car accident and explain them to a jury or trial court. A lawyer can also send these important tests to the plaintiff’s treating physicians or to his or her own plaintiff IME to see if he or she concurs based upon their own examination and treatment of the accident victim.

7) Proving “Residual Impairment”
Most injuries will have some type of permanent sequella. Personal injury attorneys need now, more than ever before, to think about the cases and people they are helping to bring these injuries and impairments to life, and to demonstrate the real impact that these life-changing events can have on people’s lives after an automobile accident.

Our Supreme Court has made the extent of any residual impairment one of the five nonexhaustive objective factors to evaluate whether a plaintiff’s general ability to conduct his or her normal life has been affected. In presenting proofs to meet this prong, a plaintiff attorney will also likely greatly increase the value and worth of the underlying injury claim.

Take the most common type of injuries found in a motor vehicle accident – injuries to the neck or back. It is not unusual to find that the plaintiff has been prescribed muscle-relaxers and pain relievers. Many of these medications are quite strong. Many plaintiffs will take these prescribed medications several times a day, and often several pills at a time.

Showing the long-term toxicity of medications for pain over time can be powerful and visually impactful evidence. By simple math you can show visually the hundreds or thousands of pills that the plaintiff has consumed by buying inexpensive sugar pills and putting them in a glass bowl. A toxicologist, pharmacologist, or psychiatrist can talk about the long-term effect that these medications will have over time on the plaintiff’s body.

Pain, and especially chronic pain, can have a global effect on the body and the health of a person’s emotional functioning. Serious physical injuries will often lead to serious psychological and emotional injury. Pain can and usually does cause chronic fatigue over time.

One unintended consequence of our new law may well be that in forcing plaintiffs to provide sufficient proofs to survive under our Supreme Court’s interesting and unique interpretation of what serious impairment means, creative Michigan personal injury attorneys will be increasing the underlying value of cases many times over.

Using the Economic Claim:
Plaintiff personal injury attorneys are still bringing the same $20.00 per day claim for replacement services in PIP cases, even as the real value of these household services has increased, with inflation, substantially over the past three decades.

There is no threshold for economic claims. Therefore, any 3rd party auto negligence claim potentially includes an accompanying claim for economic loss in the form of household services over the $20.00 per day that was paid by the 1st party insurance company.

Trial judges who may be entertaining a defense lawyer’s motion for summary disposition on threshold may be reluctant to grant the requested relief if they know that even if they grant the defendant’s motion they will still have the plaintiff’s case on the docket, and will still have to deal with a trial on the plaintiff’s economic loss.

The differential economic claim for household services over the $20.00 per day paid by no fault is always relevant to the nature and extent of the plaintiff’s impairment, the duration of the impairment, and how the plaintiff’s lifestyle was affected by his or her injuries.

9) The Probate Case:
Plaintiff attorneys may want to consider taking a hard look at the probate case. The need for conservatorship appointments is always present in many automobile accident cases but frankly, often ignored by personal injury attorneys who either don’t understand probate law or who are concerned about costs or the dimunition in their influence or ability to help get the case settled if they have to account to a third party. Yet conservatorships and other related probate filings can certainly help to document impairment and the affect on a car accident victim’s general ability to lead his normal life.

10) The Plaintiff’s Expert Affidavit:
MCR 2.116 requires that an expert’s conclusory opinions cannot be considered where an affidavit does not assert any facts (foundation) upon which the underlying affidavit is based. See also McDonald v. Vaughn, an unpublished case from May 18, 2004 (244687) (the affidavit must state the facts and foundation to support the offered opinion).

MCR 2.116 can be thus a sword and a shield for Michigan attorneys facing defense lawyer motions for summary disposition. It requires that the proofs offered must meet the same evidentiary threshold as evidence offered at time of trial.

This means the defense lawyer cannot use hearsay. The defendant cannot use pages of medical records, by themselves, to prove or support an argument. Foundation must be laid.

Insurance Medical Exams, or IMEs, the often notorious five or ten minute examinations by doctors who make hundreds of thousands of dollars working for insurance companies and defense lawyers and law firms are also hearsay. A Michigan attorney should bring a motion asking that they be struck and not considered part of the record when defending a motion for summary disposition on serious impairment.

11) The Order:
May v. Sommerfield, 239 Mich App 197 (1999) is still good law in Michigan. In fact, the Michigan Supreme Court never even referenced this important decision in Kreiner, which sets forth a rather rigorous requirement that a trial judge must meet in deciding threshold questions.

The Michigan personal injury attorney must make clear that granting or opposing a motion on threshold requires that a court must make its “May” findings – a factual record for appellate review as to the nature and extent of the plaintiff’s impairments. Practitioners on both sides should therefore provide the court with specific factual findings as to what plaintiff’s impairments are.

Michigan plaintiff attorneys may consider providing a trial judge with an order that details these factual findings that the judge may use as a checklist when deciding whether the impairments meet threshold or not.

12) Using Cassidy v. McGovern:
Although obviously incorrect, our Supreme Court in Kreiner has determined that the “most uncomplicated reading of 1995 amendment is that the Legislature largely rejected DiFranco in favor of Cassidy…” (footnote 8, page 12 of Kreiner v Fischer) How a four justice majority of our highest court was able to determine this from the plain meaning of a clearly written statutory definition that included and rejected elements of both DiFranco and Cassidy will be a question for our Legislature or our Supreme Court in future years.

For now, however, plaintiff personal injury lawyers must understand that we are in effect back to a Cassidy threshold that plaintiffs can use to their own advantage. If indeed Cassidy is the “ceiling” and Kreiner is the “floor,” then it follows that cases where serious impairment of body function was found as a matter of law under Cassidy would clearly survive under the similar but somewhat lower threshold, with its subjective person analysis, today.

Under Cassidy and its progeny, there were a number of important published auto accident cases, including Range v. Gorosh and Esperaza v. Manning that found serious impairment of body function as a matter of law where the impairment only lasted for three months. In Esperaza, the plaintiff missed only three months from work. Plaintiffs should argue that under the somewhat lower Kreiner threshold, these cases that met threshold under Cassidy should clearly meet threshold now.

13) Re-Thinking the Lawyers Approach when Handling Michigan Car Accident Injury Cases:

Our new law will require more time and money for auto accident cases to survive. There will be fewer cases. However, these fewer cases that do survive should have greater value. Indeed, by making small changes and minor investments, and by constructing proofs to show the long-term residual impact of injuries and how likely they are to be permanent, many cases may even double or triple in value. By restructuring proofs to survive possible defense motions for summary disposition, Michigan personal injury attorneys will unquestionably be increasing the trial value of a car accident case for juries as they present proofs that many would not have before Kreiner.

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Where do you live? (City/province or state)
_____________________________
My age is ____________ years and ________ months. Or birth
date____________________
Where is the injury? (example left elbow
_________________________________________
My injury occurred on (date) _____________________________________________
pain began how long after injury?(
days/weeks/months)___________________________ First diagnosis of
illness/disease________________________________
If this was not an injury but related to an existing disease or a
reoccurrence of a disease, please state the disease or disorders you have
______________________________
Have you been diagnosed with RSD by a doctor? _______________ or an
alternative name used for RSD
___________________________________________________
If you have not been diagnosed but strongly believe you have all the
symptoms of this disorder, what is your doctor currently calling your
condition?____________________
Why do you believe it is CRPS/RSD and your doctor does not?
Explain____________________________________________________________________
How long did it take to be diagnosed with RSD following the onset of
pain/injury?_________ yrs _________ months.
How did your pain begin-please underline or circle one of the following:
Unknown _____________
At home______________
Car accident_______________
Work related injury________________
Describe the ‘initial’ symptoms you
experienced?_______________________________________________________________
Who first diagnosed you with this disorder? Example- medical doctor, PT,
pain specialist, rheumologist ___________________________________________
what name did the doctor use for this condition? (Example-RSD, CRPS,
Causalgia, Hand/shoulder syndrome or any other names)
____________________________________
Aside from pain and the symptoms in your limb, do you suffer any other symptoms
or syndromes since the pain began?
Describe_________________________________________________________
Are you CRPS Type 1 (RSD) or Type II (RSD with proven nerve
injury)_________________________
Has your doctor or specialist explained the connection of the cause and the
additional syndromes or symptoms to the pain disorder (CRPS) Explain
______________________________________________________________________
Using the 1-10 pain scale (one being no pain and 10 being the worst ever,
rate your pain at the different time periods. Post injury_________, post 6
months after onset_______, after 1 yr______ after 2 years______ after 3
yrs _______
Has your pain ever stopped?_____________ and for how long?
__________________
Have you ever gone into remission? ____________________
Did the CRPS/RSD spread from the primary site? __________ . From where
____________ to
where_____________________________________________________________.
How long after the initial injury did the spread occur?
______________________
Were you re-injured before the spread occurred?
_______________________________,
How? ______________________________________________________________
How many doctors/specialists, in total, were or are involved from beginning
to the present day in your case?
_______________________________________________________
Tell us about your level of pain and symptoms? (Include any of the symptom
you experienced such as level of pain, swelling, redness, temperature
changes, sweating, movement difficulties, please explain as you would to
your doctor. We want to hear from you and in your own words.
_____________________________________________________________________________________________________________________________________________________
Rate your level of medical care and describe how helpful the medical system
was at the different periods during treatment. Initially pre-diagnosis/ post injury. (Rate between 1-10)_____________________
Explain______________________________________________________________________________________________________________________________________________________
Treatments-(example-how long did it take to get a specific treatment,
what tests were done) Rate it (Bet. 1-10)__________________________
Explain____________________________________________________________________________________________________________________________________________________________________________________________________________________________________
What Treatments have you had
____________________________________________
List them_____________________________________________________________________
________________________________________________________________________
What treatments have been refused and why?
_______________________________________
Explain________________________________________________________________________
What advice would you give someone who is just hurt and showing symptoms of
CRPS/RSD?______________________________________________________________
Of all the doctors involved in your experience with CRPS, in less that 10
words, how would you describe the level of their knowledge about this order?
______________________________________________________________________________________________________________________________________________________
Were any type of tests used on you and claimed to be diagnostic for RSD? If
yes, which type)______________________________________________________________________
If this was a work related injury, rate how you were treated. 1 being poorly
and 10 being the best.
_____________Explain_________________________________________________
were you believed of your pain?______________ If no, provide explanation or
a comment to explain
_________________________________________________________________
How has having RSD affected your previous income?
-Before injury I made ______________ hr or __________ month.
-If you have returned to work or will be in the near future, the amount I
make now is _________ hr or __________ and the WC provides _____________
month.
-Or- I was unable to return to work and the outcome was what percentage of
your pre-injury wage? _____________ month.
Did you hire a lawyer? _____________ When did you get the lawyer involved?
(Please specify if it was related to something specific. Example-after the
WC medical examination or an
incident).________________________________________________________________
Did you find the lawyer knowledgeable of RSD?______________________________
The approx. amount of money spent on RSD (including wage loss, self paid
treatments, self paid medications is approximately $ _____________________
Have you ever experience a negative comment or accusation regarding the
level of pain or symptoms you experience? _____ From whom? (Example spouse,
doctor, friend) _____________________________________
Was RSD or CRPS accepted on your insurance claim as your final
diagnosis?____________
What are your future plans? Indicate one of the following
I) Satisfied where I am ___________________
I) Plan to further my education or trade school. Choices.
________________________________
III) Unable to return to work or school _______________________________
IV) must work regardless of how ill I am._____________________
Has CRPS/RSD affected your relationships? _________________
If your doctor, pain specialist or lawyer were very helpful, knowledgeable
or an individual you would refer to someone, please add their name and
address here.
______________________________________________________________________________________________________________________________________________________
Have you been accused of lying, self creating symptoms or told it was ‘all
in your head? By whom_________________________________________
Do you feel like you lost your confidence level or belief system due to
pain? ________________________
What 3 things (medication, treatment, copying method or person has been the
most helpful for you throughout this entire ordeal? And why? (Please list in
order of importance)
1/Thing or person and
why_______________________________________________________

2/thing or person and
why________________________________________________________

3/thing or person and
why________________________________________________________

Where you ever exposed to any types of chemical compounds, lived on a farm,
lived where air spraying occurred or any other form of chemical type
exposure?

Describe your personality type. Are you? 1/ ____ calm, cool and collect,2/
_____ hyper, high strung and need things constantly organized, 3/___
mellow-a couch potato 4/______ mostly focused but can go either way. If you
are different than these choices, explain here
_______________________________________________________
On the day you were injured (or the inciting incident), what mood or type of
day would you describe you were
having?__________________________________________________
Using the scale of 1-10 with 1 being minimal and 10 being the most, rate how
CRPS has altered your life? ______________________
What is your last level of education?
__________________________________________
55. Do you feel you have a good understanding of what this disease is and
how it causes your symptoms?__________________
56. Please add any personal comments. Do you have any ideas, suggestions or
comments for The RSD Network Society?
__________________________________________________

End of Survey!
Thank you so much for your participation! We highly appreciate all
information you can provide us on how RSD has affected you.

******************************************************************************
Please fill the questions out fully. Your personal information (name and
address) will not be used other than if any additional information is
required. We are using this information to create a very in-depth study into
CRPS patients and how this disorder affects all of us. Hopefully we can put
this information into a book format as an educational tool for both patients
with this condition and the medical professions that treat us. If this is
possible, would you be interested in purchasing a booklet on RSD ? ____ yes
or ____ no.

If you have any pictures of your CRPS limb, neurodermatatis (rash in this
disorder), or any other symptoms caused by CRPS/RSD, please send copies only
of these pictures along with your completed survey. We will not be able to
return the picture so please make sure you send only copies you can spare.

Signed ______________________________________ Date _______________________

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By: Rex Bush

Sixteen year old Sally is southbound on I-5 near Eugene, Oregon. She hears a ring and knows she has just received a text message. After rustling through her purse, she finds her phone and checks the message. Her best friend Jane, back in Washington, has just seen Steven, Sally’s latest crush, at the Vancouver Mall.

“Should I talk to him?” Jane wants to know.

Sally has to be in Ashland in three hours so stopping is out of the question. And besides, she has no problem texting and driving. She could do it blindfolded.

Minutes later Farmer Tom, who is harvesting ryegrass seed, is blindsided by Sally’s red VW bug. Farmer Tom spends five weeks in the hospital and misses the high point of the seed harvesting season.

Back home in Vancouver Sally peruses her State Farm insurance policy and wonders: “BI–Bodily Injury, what does this cover?”

The policy says it will “pay damages which an insured becomes legally liable to pay because of bodily injury to others caused by accident resulting from the ownership or use of your car.”

Hmm…thinks Sally…what are “damages?”

DAMAGES DEFINED

Black’s Law Dictionary defines damages as “a sum of money awarded to a person because of the [wrongful act] of another.”

“Ok, so “damages” just means money,” Sally rightfully concludes.

“But how do the courts decide what money to award?”

TYPES OF DAMAGES

Damages, says the Blacks Law Dictionary, come in three broad classes: actual, nominal and punitive

Nominal damages are those awarded where a right has been violated but there is no substantial injury. When Sally drove on to the farmer’s field that was a trespass. Had she done so with no loss to the land or equipment or farmer that would have entitled the farmer to nominal damages (usually one dollar) for trespass.

Punitive damages also known as exemplary damages are intended to punish the defendant. They may be awarded where the conduct of the defendant was particularly wicked. Had Sally intentionally drove off the road to run over the farmer a jury in Lane County, Oregon might award punitive damages against her.

Actual damages also known as compensatory damages are those awarded for actual or real loss or injury. This is what bodily injury insurance most commonly covers. In most auto accident cases, actual damages break down into general damages and special damages.

SPECIAL DAMAGES

These, says Blacks Law Dictionary, are the “actual result of the injury complained of, by reason of special circumstances or conditions.” Special damages are easily quantifiable. In a bodily injury case three important special damage components are medical, lost income, and household services.

Medical Expenses

This includes hospital visits, prescriptions, and neck braces. Medical expenses need to be reasonable and necessary. Juries may trim down the medical expenses they consider excessive. If Farmer Tom ran up a $10,000 chiropractic bill the jury might decide he overtreated and cut the bill down to $3,000.

Farmer Tom might have a hard time sleeping after the crash and insist on a new Vera Wang bed prescribed by his family doctor. This would be a hard sell to convince a jury that this was a necessary medical expense relating to the accident.

Lost Income

Farmer Tom hired family members and friends to complete the seed harvest so the crop was not lost. The additional expenses he incurred reduced his profits and so he would have a claim against Sally for lost income. This would be covered by her bodily injury policy.

Household Services

Farmer Tom and his wife are very progressive and so divide up the household tasks. He is responsible for mowing the lawn and washing the cars on Saturday. To replace himself in these tasks Tom had to hire a neighbor boy. The money paid for these services would be recoverable by Tom in a personal injury claim against Sally so this would be covered by her bodily injury policy.

GENERAL DAMAGES

These are the difficult to quantify side of bodily injury damages. What is commonly known as “pain and suffering” comes under this category. Loss of enjoyment of life also falls under this category. General damages is often roughly calculated using a multiplier such as 1x, 2x, 3x times the reasonable and necessary medical expenses.

ATTORNEY FEES

If you are sued by someone after an accident, your bodily injury coverage will also pay for an attorney to defend you. These lawyers, known as “insurance defense attorneys” will be hired by your insurance company for you.

SUMMARY

Bodily injury coverage protects you if you are sued after causing physical injury to another. The coverage extends to anyone using your car with your permission. Your coverage also protects you if you are driving someone else’s car with permission.

The basic elements covered include medical expenses, lost wages, household services, pain and suffering, and attorney fees to hire an attorney to defend you.

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By: Rex Bush

“Should I tell them about my pre-existing condition?” “Will it hurt my case?” are questions clients often ask.

You don’t want to hide anything about your medical history from the other side. First, you have an obligation to share the information. Second, a preexisting condition that is aggravated can mean more compensation than if you were completely healthy before the accident.

Take the case of Shannon whose car was struck from behind while sitting in traffic. There was no visible damage to her Toyota Supra. Ordinarily a low property damage case like this one would not be worth much.

However, she began to feel pain in her neck right after the accident and was taken to the emergency room. A CT scan revealed that a preexisting disc injury had been aggravated. Eventually Shannon required surgery.

When I presented a claim to the at-fault driver’s insurance they made no offer at all. This is often the case in accidents with no visible car damage.

After a lawsuit was filed and a trial date was set the insurance company settled the case for a significant amount.

The Rule On Aggravation Of Pre-existing Conditions

In all 50 states it is established that a tortfeasor (i.e. the person-at-fault, also known as the defendant) is liable when he aggravates a preexisting condition of the plaintiff (i.e. the injured person, the person who files the lawsuit).

The United States Supreme Court gave approval to this principle in United States v. Feola (420 U.S. 671, 685.) In the Feola case the person-at-fault assaulted a plain clothes federal police officer. He tried to reduce his liability by arguing that he did not know the man was a federal officer.

The Supreme Court did not care. It was irrelevant, said the Court, that the assailant did not know the victim was an officer. In summary, said the Justices, citing a well-established principle of American law, a tortfeasor “takes his victim as he finds him.”

This principle is often referred to as the “eggshell plaintiff rule” in reference to an early English case where a man with a thin skull suffered death when a normal man would have only suffered a bump on the head.

Asymptomatic Versus Symptomatic Condition

The rule is applied differently depending on whether, before the accident, the victim was “asymptomatic,” i.e. no symptoms or “symptomatic” i.e. having symptoms.

Here is a summary of the majority American rule on aggravation of asymptomatic pre-existing conditions as expressed by the Utah Court of Appeals:

“the rule is well settled that when a defendant’s negligence aggravates or lights up a latent, dormant or asymptomatic condition, or one to which the injured person is predisposed, the defendant is liable to the injured person for the full amount of damages which ensue, notwithstanding such diseased or weakened condition.”

The other situation involves a preexisting condition where pain or disability is present before the new injury worsens it. In that case the tortfeasor is only responsible to pay the victim compensation for the aggravation of the condition.

In these cases it is necessary to apportion between the preexisting condition and the worsening caused by the new accident.

Workers Compensation

The rule is well established that when an industrial accident lights up or aggravates a pre-existing deficiency or disease, it is compensable as long as the industrial accident was the medical and legal cause of the injury.

Conclusion

Knowledge of the law of pre-existing conditions is a “must know” area for anyone handling an injury case. Be sure to research and understand the principles as they apply in your state.

Disclaimer

This article is provided for informational purposes only and is not intended to take the place of competent legal advice from an experienced injury attorney in the state where you live.

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By: Rex Bush

If you have been injured in an accident you may be wondering if you are entitled to compensation for pain and suffering.

To make a claim for pain and suffering you need: 1) injuries (typically shown by medical bills and records or photographs [such as of a scar]) and, 2) someone else must be “at-fault”. You can’t sue yourself for pain and suffering, even if you accidentally drove off the road.

Fault must be based on a specific theory of “Torts”. Torts is the branch of law that defines wrongful (civil i.e. non-criminal) conduct.

Most personal injury cases are based on one of the following torts: “negligence,” “strict liability” or “intentional act” .

Negligence

Negligence is the most common legal theory on which valid injury claims are based. One reason, of course, is that insurance companies will pay for injuries caused by negligence. Whereas, most insurance policies will not cover intentional acts.

Negligence is made up of four elements: 1) duty; 2) breach of duty; 3) causation; 4) damages (injury).

The “duty” is to act with reasonable care. Duty can be established by statute.

For example, traffic laws require a driver to stop at red lights. Running a red light violates the law and therefore is considered to be a “breach of duty”.

Causation, under injury legal principles, means that the breach of duty caused your injuries. If you already had neck problems, and they were no worse after the accident, then the accident didn’t cause your injuries. However, if the accident “lit up” (i.e. activated) or aggravated your preexisting injuries then the at-fault person (or his insurance company) must compensate you for that.

Insurance companies hire lawyers known as “insurance defense attorneys”. These lawyers are very good at finding prior undisclosed injuries and other weaknesses in your case. They will expend numerous hours and great expense to locate past medical records of claimants.

These records are reviewed by medical doctors who make a lot of money working for insurance companies. Insurance doctors often offer an opinion that 1) the claimant is not injured; or 2) if he is injured, the injuries did not come from the accident.

Strict Liability

“Strict liability” shows up most often in product liability cases–dangerous products. (And, in some states, dog bite cases.)

Strict liability, under injury legal principles, means damages (monetary compensation) can be awarded without negligence (duty and breach of duty.)

Injury law says a manufacturer of a product can be liable if its product has defects in workmanship, parts or other problems which cause the product to be defective when it leaves the manufacturer’s hands.

If the product is defective, then all others in the distribution chain (wholesaler, retailer) are also liable.

Intentional Torts

Intentional torts include e.g. “battery.” Battery is an action which is intended to, and does, cause harmful or offensive contact to another.

Years ago I represented a young woman who was beat up in Provo, Utah. The girl who did the beating suspected my client of going after her boyfriend. (This was probably true, and in the Old West may have justified a beating.)

However, today, in the Modern West, it is against the law to beat up girls who steal your boyfriend. And this was a classic case of the tort of “battery.” The beater intended a harmful contact on my client, carried out that intent and my client had injuries and medical bills to show for it.

We sued and tried this claim in front of a Provo, Utah judge. He found in favor of my client and awarded money.

The problem with intentional torts is that most insurance policies carefully exclude them. So, although my client was awarded money by the court, she never saw a dime. The defendant had no money or other assets.

Conclusion

To recover money for pain and suffering you need to follow the law of Torts. There may be other requirements in the state where you live such as a personal injury threshold for car accidents.

Disclaimer

This article is intended for informational purposes only. For specific advice on your case ask an attorney where you live.

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By: Rex Bush, Doctor Of Jurisprudence, Attorney At Law

If you were injured in an accident you have medical bills. How do you get them paid?

Here are some options: Personal Injury Protection (PIP) or medpay from auto insurance; health insurance; Medicaide; Medicare; a personal injury claim against the at-fault person or company.

Your Own Auto Insurance

If yours was a car accident, hopefully the car you were in had Personal Injury Protection (PIP) or med pay or both. If you are injured in an accident you are an insured of the car you were in. If you were injured in another person’s car and you own your own car you may be able to make a claim on that insurance also.

Some states have a no-fault insurance plan. No fault is a type of automobile insurance in which each person’s own insurance company pays for injury up to a certain limit regardless of whether its insured is at fault.

Personal injury protection is another word for no fault. So if you live in a no fault state you likely have PIP which will pay your medical bills after an accident. Report the crash to your agent who will open a claim so an adjuster can be assigned. From the adjuster you can get an “Application for Benefits” which you will use to start the process of claiming your PIP medical benefits.

MedPay is another type of auto insurance coverage that will pay for medical bills after an accident. Some policies have both PIP and MedPay.

Your Own Health Insurance

Contrary to popular belief, your health insurance will pay your medical bills from an accident. You need to first use up your auto PIP or MedPay. Usually, your adjuster will send you a letter telling you when the coverage is used up. Forward that letter to your health insurance and you shouldn’t have any problem getting them to pay.

There are two advantages to using health insurance after an accident.

One is discounts. Health insurance companies get discounts from hospitals and doctors. So the amount they pay is less than the full amount of the bill. This benefits you when it comes time to pay them back.

The other advantage is interest. No interest, that is. Medical bills accrue interest till paid. If you wait to pay your medical bills until your injury case settles you may be paying a lot of money in interest. And there is the possibility of a collections lawsuit if the bill does not get paid.

If your health insurance pays and you later get a settlement you will need to pay them back. Often, if you contact them before you settle they will allow a reduction because you had to pay a lawyer to help you get the money.

Medicaide

If you have no private health insurance there may be a program in your state that will pay your medical bills. Sometimes these programs have time limitations so file promptly. There may also be limitations on income or assets. You won’t know till you inquire.

Once again, you will need to pay back Medicaide out of your settlement. But Medicaide gets big discounts so you will be paying back far less than the amount of the original bill.

Medicare

Just like Medicaide, Medicare will pay bills from an accident but, again, they want to be paid back. And, like Medicaide they get discounts from health care providers.

Personal Injury Claim

If there was negligence or other legal basis for a claim, you may be able to recover your medical bills by hiring a lawyer to pursue an injury claim. Injury claims can take time, often several years or more, so, if possible, find a way to get your bills paid with one of the other methods. That avoids interest and possible collections lawsuits.

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