Understand Your Rights. Solve Your Legal Problems

In this article we speak with Julia Abrahams, chief counsel at Catholic Healthcare Limited and a leader in aged care law, on the challenges facing older people in Australia and what legal practitioners must do to ensure their wellbeing.

For the benefit of our international readers who may not be familiar with the term, what does 'aged care' encompass?

Aged care typically refers to the private and government-funded ageing-related supports and services that are available in Australia for persons aged over 65 years of age.

It can include supports and services for person younger than 65 years of age if they are assessed as requiring aged care. This includes persons in populations known to develop conditions of ageing at a younger age and persons who, because of significant permanent disability and lack of specialist disability accommodation, require residential care through residential aged care services.

It also includes retirement communities (independent and assisted living for persons over 55 years) and, in terms of legal practice, can include related areas such as guardianship and administration, privacy, end of life, human rights and mental health.

What is the key legislation that governs the administration of aged care in Australia?

In Australia, residential aged care and community aged care are currently governed by:

  • the Aged Care Act (Cth) 1997 and the Principles under that Act; and
  • the Aged Care Quality and Safety Commission Act (Cth) 2018 and the Rules under that Act.

A new Aged Care Act is expected in or around 2024.

Legislation regulating retirement communities is not regulated at the Commonwealth level. It is regulated on a state-by-state basis.

Disability is regulated under both state and Commonwealth law. The National Disability Insurance Act (Cth) 2013 and its Standards are key pieces of legislation.

In your extensive experience in the field of aged care, what are the greatest issues that the practice faces today?

The greatest issues currently impacting aged care legal practice in Australia are the speed, volume and far-reaching implications of regulatory change, largely arising as a response to the Royal Commission into Aged Care Quality and Safety which tabled its final report in September 2021.

This report, ‘Care Dignity and Respect’, followed two years of well-publicised hearings, public consultation, reports and research which highlighted deficiencies across the aged care sector and made numerous recommendations for reform. The Australian government is committed to introducing as many of these reforms as possible, as swiftly as possible.

Aged care regulatory reform also coincides with regulatory reform occurring across a number of other domains also highly relevant to aged care service provision. These include the most significant workforce reforms in the last 10 years, a dramatic increase in penalties for serious privacy breaches with further privacy/cyber reforms to come, dramatically increased penalties under the unfair contracts regime, progressive implementation of the voluntary assisted dying regimes, persistent agitation for change in human rights laws and promises of change in environmental stewardship requirements to come.

Practitioners advising aged care clients need to be aware of all these reforms and able to support aged care providers as they respond to the changes. Frequently, the need for legal advice and support is urgent.

The greatest issues currently impacting aged care legal practice in Australia are the speed, volume and far-reaching implications of regulatory change.

In some cases, these reforms, together with the impact of funding deficits and significant workforce pressures, may include assisting providers with consolidation and transformation as they rebalance their portfolios.

Recently, the Australian government has embarked on what it describes as a legislative reform of aged care. Can you tell us more about these reforms and what has been achieved to date?

Arising from the Royal Commission into Aged Care Quality and Safety, two reform Acts were passed in 2022: the Aged Care and Other Legislation Amendment (Royal Commission Response) Act (Cth) 2022 and the Aged Care Amendment (Implementing Care Reform) Act (Cth) 2022.

Reforms under these Acts that have already commenced include, but are not limited to:

  • The introduction of a new funding model.
  • The introduction of an Aged Care Code of Conduct and further regulation of those working in aged care.
  • Changes relating to the composition of boards, regulation of key personnel of aged care providers and issues of materiality for aged care providers.
  • Changes relating to the consent to restrictive practices.
  • The extension of the Serious Incident Response Scheme (a scheme requiring mandatory reporting of significant incidents to the regulator).
  • The capping and tightening of home care fees.
  • The introduction of quarterly reporting of star ratings of aged care services.
  • The introduction of an Independent Health and Aged Care Pricing Authority.
  • The creation of an Independent Commissioner of Aged Care, a precursor to a permanent Commissioner and function.
  • Extension of some prudential compliance requirements.

Reforms under these Acts to commence in 2023 and 2024 include, but are not limited to:

  • The introduction of a requirement for a registered nurse to be on duty in residential aged care homes 24/7.
  • The introduction of a mandatory 200 care minutes per resident per day. This requirement is dependent on the size of the residential aged care home. This requirement is to increase to 215 minutes in 2024.
  • The increase of the consumer and the on-the-ground clinical care voice in governance via the introduction of Quality Care Advisory Bodies and Consumer Advisory Bodies.
  • Provision of monthly care statements to better inform consumers about their care.
  • New aged care quality standards.
  • Radical transformation of the approach to home and community service provision.
  • An Aged Care Complaints Commission
  • A new Aged Care Act.
What are your hopes for the future of aged care in Australia?

My greatest hope is that Australian aged care can be a place where all older persons are provided with quality care and services and treated with profound dignity and respect.

Consumers of aged care are our mothers, fathers, aunts, uncles, and grandparents. They are also us in years to come. They deserve our best.

How can individual care practitioners and firms help to shape positive change?

First and foremost, aged care clients require accurate, timely, insightful and helpful legal advice and supports. This requires up-to-date knowledge of the law and the provision of helpful advice and support that takes the realities of aged care service provision into account.

Some of these realities include workforce shortages and transience, costs’ increases and funding shortfalls, increase in regulation and regulatory scrutiny and penalties, increased focus on privacy and cyber, impact of severe weather events and pandemics, crisis response and management, and transformation and consolidation of the aged care sector.

My greatest hope is that Australian aged care can be a place where all older persons are provided with quality care and services and treated with profound dignity and respect.

Next, many providers need legal advice and supports that they can afford; many providers are small- or medium-sized with limited resources.

Legal practitioners can also assist by providing alerts about legislative and regulatory changes and by working with providers, peak bodies and regulators in relation to profound legislative and regulatory change and change across the sector.

 

Julia Abrahams, Chief Counsel

Catholic Healthcare Limited

Suite 1, Level 5, 15 Talavera Road, Macquarie Park, NSW 2113, Australia

Tel: +62 02 8876 2125

E: JAbraham@chcs.com.au

 

Julia Abrahams has served as the chief counsel of Catholic Healthcare Limited for more than 20 years. She has also served for a term on the advisory board of the School of Law, Sydney campus, of the University of Notre Dame Australia and was recently named one of the top 12 In-house counsel in the Health and Aged Care category in Australia in the Doyle’s list. In 2022, she received Lawyer Monthly’s Aged Care Law Counsel of the Year award.

Catholic Healthcare Limited is a for-purpose provider of residential aged care services, community aged care services and retirement communities. The organisation’s staff of almost 4,000 also support aged care residents who participate in the National Disability Scheme, older persons who are homeless or at risk of homelessness and older persons who live in conditions of severe hoarding and squalor. Catholic Healthcare’s services are provided from over 60 sites across New South Wales and South East Queensland.

In these cases, the use of personalised vehicles and other transportation aids is critical to help restore their standard of living. This month we hear from transport expert witness Niki Sinclaire, who provides an in-depth look at her own role in providing mobility solutions for her clients.

As PMS is a full service transport company focusing on providing mobility solutions to those with disabilities, how does your role as an expert witness integrate with the broader services PMS offers?

As an expert witness I am instructed by legal professionals and can assist case managers to assess clients for their transport requirements. It is through the assessment process that our other services offered by Personal Mobility Solutions are accessed. The service that is used is very much dictated by the outcome of the meeting. One or more services may be offered at any time.

For example, it may be established during the meeting that the client is without any suitable wheelchair-accessible transport of their own and without the right transport they are unable to gain access to the wider community. It could be that they have a taxi account, but this has proved to be unreliable. In this instance I would make a recommendation in my report for an adapted rental. During the time it takes to write the report, I would also refer the client or their representative to our rental department to obtain a quote for that service as an immediate need.

The option of a rental vehicle is offered as a short-term solution until a permanent vehicle can be sourced, and the client has the choice again to use our services to purchase their new adapted vehicle. Through our Vehicle Supply Service, we will source the base vehicle and oversee the adaptions and modifications that are required, arranging the vehicle transfer between sites and handling all the administration for the client such as the vehicle registration and insurance. By offering this service we can ensure that the vehicle is ordered, adapted,] and delivered to the client without any disruption or stress to themselves.

We are often instructed to oversee the sale of an existing client’s current vehicle. They may have reached the time where it is getting too old and they need to replace it, or it could be that their circumstances have changed and they require a different type of vehicle altogether and we can assist them through our Part Exchange service.

As an expert witness I am instructed by legal professionals and can assist case managers to assess clients for their transport requirements.

In which types of cases have you been called on to provide your expert opinion?

I can be instructed on any case where there is a requirement for a transport review. However, I am predominantly instructed on cases of medical or clinical negligence either through birth or an operation that has gone wrong, as well as road traffic accidents, acts of terrorism and anything that has resulted in a life-changing catastrophic injury for the client and has placed them in a position where they can no longer drive or access a vehicle in the conventional manner.

Whilst transport may form the smallest and least important part of a client’s claim, it can often make the biggest difference. Having access to suitable transport can give someone back their independence and enhance their quality of life and wellbeing. It is important to point out that it does not matter about the individual’s disability or whether they are cognitively aware; their rights to be able to travel in safety and comfort are just the same as any able-bodied person. All that changes are their vehicle requirements.

For example, I met a client who, pre-incident, had a high-flying career. They were the main driver for the family days out and they helped with the school runs – they were the one to depend on. Post-incident, they find themselves confined to a wheelchair for all their mobility needs. They are fortunate enough to still have upper dexterity and they can transfer independently, but they are unable to help with the family chores as they did before. They could still drive, but the family vehicle was unsuitable, due to having the wrong transmission, no driving controls and being difficult to access when transferring. They just wanted to be able to do something to help with family life, but they did not have the right equipment to do so.

So, we investigated the option of a vehicle that offered a good access height that the client could transfer into from their wheelchair, with enough space to then dismantle their wheelchair and stow it in the footwell next to them, and with the correct driving controls to enable them to drive without having to use the primary pedals of the brake and accelerator. I suggested a small number of vehicles that I felt would fit the client’s criteria and they were able to find a vehicle that they could transfer in and out of whilst managing their own equipment. They are now able to help with the school runs, and they can take a trip to the shops without requiring assistance. They now have some level of independence back again.

Do you have a typical process that you follow with each of your cases?

When I meet with the client for their transport assessment, I treat it as though we were having a general conversation and not a tick box exercise. It is important that they feel comfortable and we can build a good rapport. Where possible, I always try to meet with the client in person. From experience I have found that so much detail is lost when carrying out an assessment through a media platform. Meeting face to face enables me to get a better understanding of day-to-day life for the client. I can see how the family dynamics work, everyday struggles with equipment, etc. It is through this process that I can obtain the information I require to build a picture of what the clients vehicle needs are.

When I meet with the client for their transport assessment, I treat it as though we were having a general conversation and not a tick box exercise.

By asking open questions I can establish what their vehicle requirements were pre-incident and how they may have changed post-incident. I ask questions such as how they wish to travel, how they are going to access a vehicle, are they going to be a driver or a passenger. There are many factors that will have an impact on my vehicle recommendation, and everything must be taken into consideration to get the right outcome and ensure that the correct transport is provided.

So many times, I have met with a client who has the wrong vehicle sat on their driveway. It has been provided without knowing all the facts or the specific needs of that client. The provider has not taken into consideration the dimensions of the wheelchair, the headroom required, how many passengers it will need to seat or how the vehicle will be driven and by who! It has been provided because it was available and it will probably be okay. I have been told by clients that when they raised the issue about how unsuitable their transport was, the response was “See it as a learning curve, we will know better for next time”. And the client is stuck with a very expensive vehicle that is not fit for purpose.

As a company we do not manufacture or sell anything, so when it comes to finding the right adaptions, driving controls and transport, we have built relationships with a select choice of adaptors and specialist engineers. This enables Personal Mobility Solutions to offer a fully bespoke modified vehicle that has been tailored to the client’s specific driver or passenger requirements.

What are the challenges of being able to prove that your opinion is correct and that it can stand up to scrutiny? What sort of value can an expert witness bring to a case?

There are so many variations of what is essentially the same wheelchair-accessible vehicle or driving adaptions, so when I produce a driving assessment report I make sure that I have taken the time to really research all the options available to the client. It is my duty as a transport expert witness to ensure that I have shown due diligence in my findings and not just recommended a vehicle because that is the one the client likes or it is the most expensive and therefore will be the right one.

Every vehicle adaptor has their own conversion that they offer, and it will not be appropriate for all clients. My role is to have a good understanding and excellent knowledge of the modifications available by different adapters and to be able to recommend a specific vehicle adaption because I know that the conversion will offer the correct headroom for someone seated in a powered wheelchair, or that the base vehicle is compatible and can be adapted with specialised driving controls such as Paravan Space Drive.

Adapting a vehicle for someone with disabilities is not a one-size-fits-all. There are so many aspects of the client’s daily life that must be considered. When I write my report, this is what I am trying to put across to the reader. I have to justify the reasons why I am making my recommendations for a particular vehicle or vehicles and I have to make it clear that I am recommending that vehicle with those specific adaptations because they offer the right solution for the client.

Adapting a vehicle for someone with disabilities is not a one-size-fits-all. There are so many aspects of the client’s daily life that must be considered.

I must also show that I have taken into account all other vehicles available and explained that I have eliminated them on the grounds that they cannot be adapted to suit the client. As an example, they may not allow enough head height for someone travelling in a Permobil powered wheelchair. They may not offer a drive from wheelchair position or they are too small internally compared with other vehicle makes and models. There can be quite a difference in price between various vehicle adaptions, but this does not influence my decision. The wrong vehicle is the most expensive vehicle.

Your firm also provides valuation for probate. Given the specialist and potentially bespoke nature of the mobility vehicles, how do you go about providing an accurate valuation?

To establish any adapted wheelchair-accessible vehicles value, we first look at the value of the vehicle itself based on its age, mileage and condition as a regular, unadapted vehicle. We then look to establish the desirability of the vehicle as it is presented. This includes the type of access, the number of seats, any driver adaptations, etc.

Having supplied many bespoke new vehicles over 20+ years, we have very good knowledge of which vehicle conversions are more commonly supplied and are therefore more desirable and of greater value as a used vehicle. This information, combined with our newest enquiries along recent sales reports from specialist sales outlets, helps us to confidently respond to any enquiries.

Given the unique nature of the mobility solutions offered, how does PMS go about providing aftercare to its clients? What can clients expect? Do you offer any accident management services?

Aftercare, or PMS Service Care as we offer it, is available to all our clients whether we supplied their vehicle or not. We can provide as little or as much support as is required. We can send out maintenance reminders for scheduled jobs such as MOT dates and equipment checks and services, which in some instances are Legal requirements. As many of our clients rely so heavily on their vehicle and cannot be without it, we can arrange for ‘on-site’ visits for equipment maintenance.

We also arrange workshop bookings for vehicle repairs, including collection and delivery where offered. Personal Mobility Solutions can settle the workshop accounts on the client’s behalf and then recharge the costs, where applicable, NET of VAT to the deputy or client directly, as instructed. We are also available to help with ‘vehicle off road’ situations and accidents and, where available, can assist with the provision of a rental vehicle to keep clients mobile. We charge a small service fee for our administration and provide all of this information with every new vehicle we supply.

What are the distinctive challenges when it comes to assessing the precise mobility needs of your clients? How do you develop a bespoke solution?

There are many challenges that we face when assessing a client for their transport needs. Putting together a criteria of their requirements is just the beginning. Once the criteria has been established we then need to determine which set of specialists we can liaise with to bring it all together.

No two clients are the same and whilst they both might require a vehicle that they can either access in a wheelchair or carry out a wheelchair transfer into the driver’s seat, once they are on board they may need specific equipment to make the travelling experience safer and more comfortable. This may not be an off-the-shelf product or available through the adaptor and a bespoke solution will need to be sought.

To give an example, I met a client who had severe burns to their torso and face and needed regular operations and skin grafts. Each operation left them in quite a lot of pain and discomfort whilst they were recovering. They found something as simple as having the seat belt across their chest and stomach extremely unpleasant and they became quite distressed when travelling. They had tried seat belt deflectors that were available on the market but to no avail. They needed something more tailored to them. They needed something that would enable them to wear a seatbelt so it would still function as it should, but that did not press against them. It also needed to be adjustable to allow for when they were wearing thicker clothing such as a winter coat.

I had the knowledge that the right equipment did not exist. I also knew that this was something that a vehicle adaptor would not offer and would need to be a specialised piece of kit manufactured by an engineer. Working closely with the client I was able to design a mechanism that was fixed to their seat and that allowed the seatbelt to be worn without it pressing against their stomach. This proved to be very successful and enabled them to travel in comfort.

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This is just one of many examples where, as a company, we have had to find a tailored solution for our clients as it cannot be picked off the shelf. Another brief example is fitting a medical table and power inverter in the rear of a wheelchair-accessible vehicle that enabled a cough assist machine to be transported, powered and used whilst the client was travelling in their wheelchair. Again, this was not a product that could be found on the shelf and required a more bespoke approach.

 

Niki Sinclaire, Personal Transport Expert Witness

Personal Mobility Solutions Ltd

Cedarmount House , 90a Owlsmoor Road, Sandhurst, Berkshire, GU47 0SS, UK

Tel: +44 01344 989140

E: niki.sinclaire@pmslonline.com

 

Niki Sinclaire

“I have worked in the automotive industry for over 20 years and have been with Personal Mobility Solutions for five years. I have a background in litigation and worked for a leading car hire company as a litigation manager. Wanting to add to my qualifications, I studied as a counsellor and spent time working on an all-female acute forensic ward with patients of varying mental and physical ability under the Mental Health and Mental Capacity Act. On average I see between three and four clients a week for both passenger and driver needs, including all wheelchair-accessible vehicle requirements.”

Personal Mobility Solutions is an established expert witness service that is recognised by the Court of Protection, with extensive experience in the assessment and provision of transport related mobility solutions throughout the UK. The firm has a proven track record working with legal professionals and deputies and is well equipped to provide consultation and implementation of automotive adaptations and conversions.

Women’s health and wellness is a billion-dollar industry. Unfortunately, we have seen greedy companies put profits ahead of the health of women consumers by neglecting to fully vet their products for health risks before putting them on shelves. They are not quick to pull products either. Now, women are paying the price in high rates of serious health complications. There are many loopholes that allow dangerous products to enter the market — and stay there.

This needs to stop. Women deserve to use products that are safe and effective.

This article highlights pending and past litigation for defective products designed for women and what we can learn from them.

Johnson & Johnson Baby Powder

Johnson & Johnson (J&J) baby powder was one of the company’s earliest and best-sold products. Its key ingredient is talcum powder. Although J&J baby powder is sold in the baby aisle, adult women have long used it between their legs to prevent chafing and on the pubic area as a feminine deodorant. J&J later released Shower to Shower body powder, also containing talc, specifically for adults. Now, many lifetime users of these products have developed ovarian and lung cancers. More than 25,000 lawsuits are pending against the corporation, including a major class action suit filed by Napoli Shkolnik PLLC and Ben Crump Law just last month.

How Baby Powder and Cancer Are Linked

Several times beginning as early as the 1970s, J&J’s raw talc and finished powders tested positive for asbestos — a known carcinogen — which happens to occur naturally in the earth near talc deposits. J&J company executives, mine managers, scientists, doctors and lawyers knew about these instances of contamination, but did not disclose them to regulators or the public. In 2006, the International Agency for Research on Cancer (IARC) classified perineal use of talc as possibly carcinogenic, saying available research provided “limited evidence” it caused cancer in humans. Again, J&J did not pass this information down to consumers.

Aggressive Targeted Advertising

Not only was J&J aware of the risks of talcum powder, it also amped up its advertising when sales began to decline in the 2000s. Our lawsuit cites disturbing evidence that J&J especially targeted Black women in its ad campaigns. Tactics included distributing millions of free baby powder samples in Black and Hispanic neighborhoods; advertising with Weight Watchers and other lifestyle brands favored by overweight women, and radio ads aired during the hot summer months when demand for baby powder would be highest.

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The success of the ad campaigns targeted at Black women is rooted in the historically racist and sexist notion that Black women are in some way “unclean” and must fix their natural scent through actions like douching. Brands like J&J took advantage of these hurtful stigmas to boost sales, failing to protect consumers in the process.

J&J finally issued a recall on over 30,000 bottles of baby powder in 2019 after asbestos was found. In 2020, the company announced it would discontinue selling talc-based baby powder in the US and Canada.

How Did Baby Powder Stay On Shelves for So Long?

Baby powder is classified as a cosmetic. Under the FDA’s Federal Food, Drug and Cosmetic Act (FD&C Act), cosmetic products and ingredients — except for colour additives — do not need FDA review or approval before they go on the market. The FD&C Act makes it the responsibility of the pharmaceutical company to test their products for safety. It is also up to the pharmaceutical company to issue voluntary recalls if hazards are discovered, as the FDA cannot order a recall unless there is reliable information indicating that the product is adulterated or misbranded to an extent that could cause serious harm or death.

Pharmaceutical companies can register with the Voluntary Cosmetic Registration Program (VCRP), a post-market reporting system that assists the FDA in regulating cosmetics marketed in the United States. The FDA website states, “Information from the VCRP database also has been used by the Cosmetic Ingredient Review (CIR), an independent, industry-funded panel of scientific experts, to assist the CIR Expert Panel in establishing their priorities for assessing ingredient safety as part of their ingredient safety review”.

But the VCRP is just that: voluntary. And the database is only as useful as the products registered. Leaving pharmaceutical companies to self-regulate their products is problematic because there is no guideline for how to test for safety; the definition of “safe” becomes subjective. In the case of Johnson & Johnson, it determined from their testing that the amount of asbestos found in earlier baby powder contaminations was not harmful enough to report — yet there is no known “safe” amount of asbestos. In this way, self-regulation makes it impossible to tell whether a pharmaceutical company is telling the whole truth about their product.

The FD&C Act makes it the responsibility of the pharmaceutical company to test their products for safety.

Medical Devices — More Regulation, But Not Enough

Medical devices are subject to more regulation than cosmetic products, but harmful medical devices still make it onto the market. Health complications from medical devices can be far more severe. Here are some of the ways the FDA regulates them, and where they fall short:

Black Box Warnings, or “boxed warnings,” are printed on the labelling of a prescription drug or medical device if there is a risk of serious injury or death associated with using the product. The FDA mandated a black box warning for the female sterilisation device Essure in 2016 amid thousands of reports of complications following placement of the device. As of 2020, there have been over 16,000 medical device reports (MDRs) of abdominal pain, ectopic pregnancy, organ perforation, and other serious adverse side effects associated with Essure. 

FDA Adverse Events Reporting System (FAERS) is a database that contains adverse event reports, medication error reports and product quality complaints resulting in adverse events that were submitted to the FDA. There is both voluntary reporting and mandatory reporting. Manufacturers, importers, and device user facilities are required to report certain device-related adverse events and product problems to the FDA, usually serious injury or death.

Similarly, the makers of the birth control device NuvaRing were also sued for failing to adequately warn consumers about the heightened risk of blood clots and other injuries associated with the product. In 2013, NuvaRing paid a $100 million settlement to Napoli Shkolnik clients harmed by the product.

Premarket Approval and Classification. FDA-approved drugs and medical devices are categorized as Class I, II, or III. Class III is the highest risk class, and as such has strict research and safety requirements for premarket approval (PMA). Transvaginal mesh, which is used to treat urinary incontinence and pelvic organ prolapse (POP), was upgraded from Class II to Class III in 2016. The FDA has since found several surgical mesh implant PMA applications to have insufficient proof of safety. Thousands of women are experiencing devastating, even fatal complications from transvaginal mesh as manufacturers shell out huge settlements. Had the product been correctly classified and tested from the beginning, irreparable harm could have been avoided.

Conclusion

As a leader in pharmaceutical litigation and a woman myself, I am heartbroken by the number of women currently suffering because of the malfeasance and negligence of money-hungry companies. We must reform the way cosmetics, drugs and medical devices get on the market, how they are marketed, and the process by which to get them recalled, or countless other people will be put at risk of serious injury or even death. It is time for us to prioritisez the health and safety of women and not lining the pockets of companies.

 

Marie Napoli, Founding Partner

Napoli Shkolnik PLLC

Address: 360 Lexington Avenue, 11th floor, New York, NY 10017

Tel: +1 212 397 1000

 

Marie Napoli has been an attorney for over twenty-five years. She has experience handling personal injury, medical malpractice litigation, pharmaceutical litigation, employment discrimination, civil rights, and mass tort matters. Marie earned her JD from St John’s University Law School and her LLM degree from New York University (NYU) School of Law. She has worked for the New York Appellate Division, 2nd Department and has taught CLE courses on Tort and Civil Procedure at St John’s University School of Law. As a founding partner of Napoli Shkolnik PLLC, Marie is involved in many depositions and has tried multiple cases to verdict. She is also bringing her considerable skillset and experience to a collaboration with Ben Crump on numerous social injustice litigations.

Napoli Shkolnik is a national law firm based in New York City. Their personal injury attorneys represent victims across the country in litigation, mediation and arbitration across a range of practice areas, including medical malpractice, environmental litigation and civil rights. With additional offices in Long Island, New Jersey, California, Delaware, Florida, Illinois and Texas, Napoli Shkolnik’s team boasts 30+ years of experience and more than $3 billion secured for their clients through verdicts and settlements.

A cerebral palsy lawsuit can lead to a larger award than you would obtain for your child through a settlement. However, it’s vital that you make the appropriate preparations to give your family the best case going forward.

Is a Cerebral Palsy Lawsuit Really Worth the Cost?

A cerebral palsy diagnosis can lead to much anguish felt by parents. Not only is their child born with a debilitating lifelong condition due to the neglect of a medical provider - but now they must also fight that provider and a host of other potential parties in court, potentially for years.

This can lead to parents weighing whether or not they really want to take that additional time and expense to fight people they would rather not see for years of a formative part of their child’s life. However, there’s no other opportunity for you to obtain the maximum compensation for your child, making it vital to get the maximum settlement possible for them now.

Do You Have Grounds to File Suit for Your Child’s Cerebral Palsy?

It’s important to first establish that you have the grounds to file a cerebral palsy suit for your child. For one, your child will need to be diagnosed with it, though there aren’t any specific tests they can take that will do this. Rather, the condition is determined through a process of elimination to rule out other conditions that may cause similar problems. Common symptoms of cerebral palsy that may occur in other illnesses include the following:

  • Seizures
  • Slurred speech
  • Poor muscle tone and control
  • Ataxia
  • Tremors
  • Stiff muscles
  • And more

Identifying your child’s condition as cerebral palsy is vital to opening a case for them. Once this has been done, then your lawsuit can begin.

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What Expenses Could Your Child Face From Cerebral Palsy?

Your child could face numerous medical expenses related to cerebral palsy, including the following:

  • Physical and emotional therapy
  • Mobility devices (walkers, braces, wheelchairs, crutches)
  • Wheelchair-accessible vehicles
  • Hospital visits
  • Caretaker expenses
  • Lost wages
  • Medications
  • And more

You and your child can face lifelong medical expenses running well into the millions due to cerebral palsy. This makes it important to work with a medical malpractice attorney who can successfully pursue your lawsuit to help you obtain the maximum compensation possible.

How Long Can a Cerebral Palsy Case Take?

A cerebral palsy lawsuit can often take several years to complete, making it important for parents to be aware of the emotional and financial toll it can take. In many cases, an attorney will want to wait for two years to determine the full extent of a child’s problems. This allows them to pursue the maximum compensation for all of the expenses the child is likely to face across their life. However, this can take an enormous toll on the parents, and eventually the child, but can lead to lasting financial benefits that are vital to helping your child experience a high quality of life.

A cerebral palsy lawsuit can provide your child with the compensation they’ll need to enjoy a high quality of life. It’s vital to helping cover their medical expenses and to offset the lost wages they may face. An experienced medical malpractice lawyer can serve as your guide and will work on your behalf to obtain the maximum compensation for your family. This is your one chance to help your child recover what they’ve lost - make it count.

Professional athletes are entitled to workers’ compensation and various coverage benefits if they are not offered a fair payment through the compensation program. Based on the type of sport, workers’ compensation laws vary from state to state.

For instance, professional boxers and jockeys, who have to deal with physical damage in every match, have to face the most complications with their workers’ compensation coverage. Because it’s common for individuals to get grave injuries in the sports sector, it’s important for athletes to make sure that they’re insured and can receive compensation for their injuries. If you’re wondering whether you’re entitled to workers’ compensation as an athlete, here’s what you need to know. 

Why Is There A Need For Workers’ Compensation Insurance For Fitness And Sports Businesses?

A workers’ compensation insurance program is meant to cover lost wages and medical expenses for work and sports illnesses and injuries. It can help workers, including professional players acquire financial help to either regain their original strength to get back to their profession or change their profession or retire with a pension to sustain their lives. Moreover, it’s mandatory insurance that every sports team needs to have for its players.

1. It Can Be A Life Saver

There is always a physical risk to players when it comes to fitness and sports activities. If a player incurs a muscle injury while practicing or performing a sports activity, it is considered a work-related injury. In this scenario, it is the duty of the sports team business owner to compensate for the medical bills due to the sports injury.

Instead of paying the complete amount from their pocket, the sports team owner can get compensation for treating the injury using the workers’ compensation scheme. Moreover, this claim is also liable to cover missed wages while the player undergoes a recovery period.

If a player incurs a muscle injury while practicing or performing a sports activity, it is considered a work-related injury.

With workers’ comp insurance, athletes can get help for:

  •   Emergency ward costs and immediate medical bills
  •   Partial wages lost while the injured player is undergoing a recovery session
  •   Physical rehabilitation costs and other medical expenses

2. It Helps Sports Business Owners

There can be a case where the player employed by the sports team owner decides to sue the business owner over a sports injury. In such cases, workers’ compensation schemes can help employers get the financial help needed to fight the lawsuit. This type of scheme is known as employer’s liability insurance, and it can help cover the following:

  •   Court costs
  •   Attorney’s fees
  •   Judgments and settlements

Whether the lawsuit is strong or not, a sports business owner might still need to compensate for the injuries of the player out of pocket if no insurance covers it.

Types of Sports Injuries 

Professional athletes can get injured during a game or have physical issues that develop over a long period. No matter what type of injury, they are entitled to compensation under this program so they can sustain their livelihood while they recover or re-train for other work (if permanent disability). The most common injuries for which professional players are entitled to receive workers’ compensation are:

  •       Spine or back injury
  •       Herniated disks
  •       Torn ligaments or ACLs
  •       Joint injuries to the elbow or knee
  •       Muscle tears
  •       Traumatic injuries to the brain and concussions
  •       Fractures and broken bones
  •       Rotator cuff issues and shoulder impingement

Professional athletes can get injured during a game or have physical issues that develop over a long period.

When Athletes Are Eligible For Workers’ Compensation Benefits

Any professional athlete who experiences injuries after sports is eligible for this insurance scheme. In most cases, the workers’ compensation program can provide the most benefit due to severe damage leading to long-term or permanent disability, or when the athlete’s body is in no condition to work anymore after their sports career ends. Problems due to joint pain may also receive some compensation, but we recommend choosing a good lawyer who can help build a strong case for you, ensuring monetary benefits.

How Can athletes Lower Their Risks?

Fitness and sports business employees are at high risk when it comes to sports injuries. If a fitness instructor or dance instructor gets an injury while working, he or she has a right to acquire an insurance claim, which can incur a higher workers’ compensation premium for the sports business owner or employer.

It’s in the hands of the employer to ensure that such risks of sports injuries are mitigated in the first place. To make sure that such mishaps don’t happen, they can try creating a safer environment for the employees. For that, they can use the following techniques:

  •   Maintaining exercise equipment regularly
  •   Safety training for the employees and athletes
  •   Rules to use proper footwear at the workplace

Such steps can help lower the risk of workplace injuries, which can help you decrease your workers’ comp insurance premiums.

Baseball player preparing to bat

How Can Athletes Calculate Their Compensation Rate?

The general rule to calculate the cost for a workers’ comp is based on the following formula:

Experience modification rate x Classification rate x (Payroll / 100) = Premium

The premium that you need to pay in this scheme is calculated based on each $100 that you take out from your payroll. The classification rate is the type of sports activity or works your employees perform for you. Your experience modification rate is the claims history of your employed player and the payroll is per $100.

It’s important to note that every state has its own laws and requirements for workers’ compensation programs. For instance, it’s mandatory for every New York-based Pilates studio to have workers’ comp insurance for its employees, even if the employee has a part-time job over there. On the contrary, sports business owners in Alabama are only obligated to carry this insurance if they have more than five employees with them.

Even if a professional athlete is not affiliated with any team or sports business, he or she still has a choice to buy this policy for self-protection.

Obtaining A Life Pension

Players are also entitled to receive a lifetime pension in cases where their body has incurred over 70% injuries, leading to permanent disabilities. The pension might not be too high, but it can still vary based on specific statutory laws for the workers’ compensation insurance in the area. Insurance companies will try providing a small pension for the players. That’s why it’s recommended to hire workers’ compensation experts who will help negotiate fair monetary coverages for disabled players. It can be hard to live life if your body cannot do physical work anymore due to the degree of disability after your sports career, which is why taking help from such attorneys can benefit you.

Players are also entitled to receive a lifetime pension in cases where their body has incurred over 70% injuries, leading to permanent disabilities.

Benefits Provided To Permanently-Disabled Athletes

Professional athletes get coverage based on the level of disability due to the injuries. Besides acute injuries, players can also receive compensation for cumulative injuries that form over an athlete’s whole career. Furthermore, the degree of injuries and disabilities also have varying coverages. The amount of monetary benefit may also be received for players based on the period of injury.

Claiming Compensation After A Long Hiatus

While most sports athletes will claim compensation due to a sports disability or injury within a couple of days, some might not be fit enough to file a claim. Furthermore, it’s also possible that they weren’t aware of this insurance scheme available for their benefit. If a professional athlete is not aware of workers’ compensation rights, they still have the right to file a claim in some states to try to obtain compensation for the losses. You may have to learn the rules and regulations regarding this type of delayed claim in your state first.

Vocational Rehabilitation

Athletes who get a permanent disability due to sports injuries cannot return back to become professional players. For such players, a vocational rehabilitation program offers a re-training compensation of up to $16,000 to acquire education or training for some other work. Usually, the funds acquired through this program can be applied by an athlete to pursue a trade school or college education. Furthermore, a portion of the funds is paid to the athlete as weekly compensation while they complete their studies at the college or school.

Successfully Filing for Workers’ Compensation

Unfortunately, getting workers’ compensation as a pro athlete is not that easy. The rules defining monetary and healthcare claims from this insurance policy differ based on states, injury types, and career periods. This coverage is quite complicated for sportspersons, and it can also take a lot of time to get the benefits for a filed claim. Mostly, individuals are not aware of the type of injuries or losses they are eligible to claim.

If a professional athlete is not aware of workers’ compensation rights, they still have the right to file a claim in some states to try to obtain compensation for the losses.

In other situations, the lack of information can lead to a weak case. That’s why it is recommended to get an experienced workers’ compensation lawyer who will properly study the ins and outs of the case to help you get fair benefits. Their skills and experience in this field will be genuinely beneficial for winning such a case successfully.

Costs of Filing a Claim

As an employee at a sports business, you may need to file a claim for workers’ compensation. As mentioned earlier, it could be hard to file one on your own because of the numerous rules and regulations that need to be followed state-wise. Instead of doing it yourself, you can use an attorney to help you with the formalities, evidence, and documentation needed for filing the claim.

When you approach an attorney for this issue, they will get you evaluated to note down all the incurred injuries, which will act as proof for building your claim case. This could include MRI or X-rays. You might have to pay the expenses for the evaluation reports, but some attorneys may do it for you free of charge as well. They usually apply their fee later when the claim for the workers’ compensation is received. 

Other Insurance Policies For Professional Athletes

No doubt, a workers’ compensation program has a lot of safety and financial benefits for employees, but it is not the only insurance policy available. Moreover, workers’ comp has its limits as it doesn’t offer coverage for some of the risks. In short, it offers healthcare and monetary benefits to workers who get injured during their work-related duties, and in this case, it’s on the field or after strenuous exercise. 

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With that said, professional sports teams purchase this insurance policy in case athletes get injured, so if you’re on a professional team, all your expenses during recovery should be taken care of. The insurance provider covers a filed claim for an injury after studying the case. That’s why, sports business owners may also consider checking out other policies, like the following:

1. Business Owner's Insurance Policy

This insurance policy uses a blend of a general liability insurance policy with a commercial property policy and that too at a decreased premium. As owning and managing a sports team is a type of business, this policy can be quite beneficial at supporting some of the claims applicable to this business.

2. General Liability Insurance

GLI policy provides coverage for costs related to property damage and customer injuries. Furthermore, you can also use general liability insurance to cover injuries due to advertising, like when a competitor accuses your business of slander.

3. Professional Liability Insurance

With the help of this policy, you can get insured for omissions and errors that usually occur at work. For instance, one of your employees got injured while undergoing improper training. In such a case, professional liability insurance will help compensate for the medical bills and damages. 

Injuries in sports are common, but that doesn’t mean athletes should not be compensated for it. Most sports teams get workers’ compensation coverage for their athletes to help them in times of need. So make sure to use this privilege if you or some professional athlete you know needs help for a sports disability or injury. It’s best that you hire an attorney to guide you in case you are in need of a workers’ compensation claim. Or, you may also take help from a lawyer as a sports business owner to compensate for your employee’s sports injury fairly. 

You may have back pain and other health-related issues. Back pain is a common condition that is likely to affect you when considering your time spent in service and all the activities you frequently engaged in. Getting your disability benefits could be a quick option for you.

When you initially qualify for benefits, your rating will probably start at 10%. Although back pain case ratings might take slightly longer to increase than other conditions, you may be lucky enough to have them increased up to 100%. What does that translate to? It means that the health and monetary benefits you qualify for will also increase, making it easier for you to access the health services you need.

However, your rating may not be at a high level yet. You may be wondering how to improve your rating. Don’t worry because you are in the right place. In this article, you will learn what to do to increase your rating.

What Conditions Qualify for the Highest VA Rating?

Though there may be many back conditions that prompt you to request a higher VA rating, not all conditions are eligible. Below is one condition that may award you either a 40% or 100% rating.

Disability on the Thoracolumbar Spine

When we talk about back injuries, this refers to the thoracolumbar spine, which encompasses the thoracic and the lumbar parts of the spine. After understanding that, you need to know that ratings are assigned depending on the extent of the damage to the part that has been affected. If a specific part is fully affected, it will command a 100% rating. However, if it’s a partial impact, you may only have about a 40% rating.

Why You May Only Qualify for 40% and Not 100%

It’s important to understand that disability refers to mobility or range of motion. It’s also known as ankylosis, which describes joint fusion. Ankylosis can affect many joints such as your elbows, knees, fingers, and toes. Ankylosing spondylitis specifically refers to fusion of the spine. It is often caused by an injury to the spine. This condition may limit your range of motion or completely restrict your ability to move your back.

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What determines your VA rating is the severity of your ankylosis. When talking about spinal cord injuries, you’ll often hear the words complete and incomplete. A complete spinal cord injury means a full loss of feeling and movement control below the site of the injury. An incomplete spinal cord injury means a partial loss of feeling and function below the site of the injury. Both injuries can greatly impact your quality of life but they do not both qualify for a high VA rating.

If you have a complete spinal cord injury, you may get a rating of 100%. Realistically, the most common rating after 100% is 50% for thoracolumbar disability. However, some people get a 40% rating for an incomplete spinal injury even when they have less than 30-degree flexion. This means that your back disability must be extensive for you to qualify for the 40% rating.

Also, for you to get 40%, you must not be able to bend completely. This shows that your condition is serious and deserves a high rating. For these reasons, you may only get a 40% rating instead of 100%.

Importance of the Highest VA Rating

A high VA rating is essential. Once you get your VA rating approval, your monetary benefits can be determined using this VA disability calculator. Monetary benefits will allow you to access the health services you need without financial hardship. These funds will be vital to you especially if your back injury prevents you from working.

Hasna Haidar, Senior Copywriter at Bolt Burdon Kemp, explores issues of equality, diversity and inclusion in law, and offers her advice on how firms can improve.

While ‘diversity and inclusion’ can seem like recent buzzwords, anti-discrimination in the workplace has been enshrined in law since 2010’s Equality Act. And yet, companies – including law firms – are still struggling to create a truly inclusive and diverse workforce. For example, a recent report into diversity in the legal industry by Bolt Burdon Kemp found that only 29% of partner roles in large firms are held by women – despite women making up 47% of the workforce.

Further findings in the report demonstrate that the legal industry is falling short in equality when it comes to three other key demographics:

  • Disability– only 3% of lawyers report being disabled in comparison to 19% of the working population. What’s more, the Junior Lawyers Division Resilience and Wellbeing Survey in 2019 found that 48% of junior lawyers reported experiencing mental ill-health.
  • Ethnic minorities – only 19% of lawyers in 2019 were from an ethnic minority background. The proportion of ethnic minorities also falls drastically as the size of the firm increases. In larger firms, only 8% of lawyers are Asian and only 1% are Black – yet they make up 27% and 8% of 1-partner firms respectively.
  • Sexuality– only 3% of lawyers identify as gay, lesbian or bisexual, in comparison to 7% of the British population identifying as such. Furthermore, 3% of partners in larger firms are gay men while only 1% are gay women – showing there’s a gender imbalance at play too.

How does your firm stack up in these metrics? Whether you do better or worse than the average, it’s important to keep striving for better. After all, an inclusive legal workforce would be able to serve their community better, being able to understand and appreciate the experiences of a broad range of individuals. Thus, with the new year fast approaching, you may want to incorporate some diversity and inclusion goals into your wider company aims. Here are a few things to think about as you get started:

Whether you do better or worse than the average, it’s important to keep striving for better.

1. Introduce diversity and inclusion targets

As part of your company plan for next year, decide a few realistic targets you’d like to meet by a reasonable deadline. Evaluate the past and current demographic makeup of your workforce, and figure out which area you would like to – and can – improve on. For example, you may want to increase the percentage of ethnic minorities in your firm to 15%, and LGBTQ+ to 4% within the next 3-5 years. Once you’ve set a goal, make sure you’ve set up the right recruitment practices and cultural efforts necessary to see it come to fruition.

2. Hire a Diversity and Inclusion Expert

To that end, you may want to hire an expert who you can consult on the right approaches to take. A diversity and inclusion expert can guide you on the best way to tackle any internal or cultural roadblocks you may have, as well as advise you on how to approach certain subjects in a sensitive way. For example, they can conduct a diversity hiring audit on your current practices, and teach you how to reduce unconscious bias, how to deal with staff who may be resistant to change, and how to make reasonable adjustments for disabled employees.

3. Take responsibility by being open and transparent

Reaching equality means prioritising accountability, transparency and inclusion. Leadership teams will need to take responsibility for any former or current failings that might be relevant to the improvements you’re trying to make. Take ownership of and be open about your mistakes to show your intentions are genuine, and get better buy-in from your staff. You may want to report publicly on your successes – or even lack thereof – at the end of your efforts, so you’re always holding yourself and your company to account.

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However you approach your journey to a more diverse and inclusive workforce, remember to keep lines of communication open – particularly to the demographics you may have neglected in the past. After all, in order to be truly inclusive, you need to listen and take on board any grievances and concerns they might have. By learning from them, speaking to the right experts and setting clear goals to hold yourself accountable, you can take the necessary steps to ensure your firm is one that is balanced, productive, thriving and welcoming to all.

When you’re disabled and unable to work, how to support yourself and get the money you need to pay bills is one of your biggest concerns.

What is SSDI?

Social Security Disability Insurance is a program run by the United States government to provide income for people who are unable to work due to a disability. SSDI is funded by a payroll tax. It can be awarded on either a permanent or temporary basis, depending on the expected length and severity of an applicant’s disability.

As of 2018, SSDI benefits were paid to nearly 10 million people, 87% of which were disabled workers. Other beneficiaries include disabled adult children and disabled widows or widowers. The total benefits paid were almost $11.6 billion. Of the large proportion of disabled workers, the average age of a beneficiary was 55, and the average monthly payment awarded was $1,233.70. The largest category of disability diagnosis was diseases of the musculoskeletal system and connective tissue, which accounted for 33.2% of cases.

In the age group of 18-64, beneficiaries of disability insurance accounted for 4.7% of the total US population of that age group. The states with the highest rates of disabled beneficiaries are Alabama, Arkansas, Kentucky, Maine, Mississippi, and West Virginia, all of which have over 7% of their population on SSDI.

How do you qualify for SSDI?

SSDI is awarded to applicants who have a physical or mental condition which prevents them from working or engaging in any “substantial gainful activity”. The condition must be expected to last at least one year or result in death, and the applicant must be under 65 and have earned at least 20 “social security credits” in the past ten years (which are usually earned at the rate of four per year while working). Additional credits are required if the worker is older than the age of 42. Medical evidence that documents the applicant’s inability to work is required.

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The percentage of the US population receiving SSDI benefits nearly doubled between 1985 and 2005, largely due to a relaxation of the screening process following an SSDI reform act in 1984, which relaxed screening for mental illness, placed more weight on patients’ reported levels of pain and discomfort, increased the importance of the treating physician’s opinion, and allowed some non-severe issues to qualify as disabling. This had the effect of awarding SSDI to more applicants and increasing the proportion of beneficiaries with less obvious forms of disability, such as mental illness and back pain.

The amount of money awarded through SSDI is based on the applicant’s past earnings. Denial of benefits can be appealed. About 90% of applicants have a disability representative to help them through an appeal, and a representative seems to be effective in raising the chances of a person getting SSDI approval. A Social Security disability attorney may be very helpful if you find yourself in this position.

How long does SSDI last?

Luckily, if you are successful in getting awarded SSDI benefits, you should keep receiving them until either you reach retirement age, at which point they would convert to Social Security retirement benefits, or you are no longer disabled.

Social Security disability benefits are reviewed on a regular basis, the timing dependent upon your condition, either every 18 months, 3 years, or 7 years. You should respond to these reviews promptly and keep your doctor updated on your condition to ensure your continuing eligibility. SSDI benefits are also revoked if you are in jail for more than 30 days, but you will be able to get them back afterward.

Work zones, where there is heavy traffic and dangerous equipment being used, create a higher risk and likelihood of accidents occurring, anywhere from minor to severe. Anyone in proximity can be affected, whether they’re employees working on-site in an active traffic zone, or passing motorists and pedestrians in the wrong place at the wrong time. The latter have the right to make a claim, regardless of whether there’s any dispute over who was actually to blame for the incident. If a worker, pedestrian, or motorist is injured and there is negligence on part of the responsible entity or company, legal action may become necessary. 

When An Accident Occurs

In the event of a severe incident resulting in one or multiple physical injuries or property damage, especially in a public environment, a road construction work accident lawsuit can come into play. This occurs in order to hold someone accountable for the damage and affiliated costs incurred as a result. It usually involves some form of liability insurance claim, and entails legal processes that will vary depending on the local laws of where the accident occurred.

If you are accidentally injured while working as an employee in a construction or road work zone, you have employment rights that should be protected by law. The company that employs you should be responsible for covering any of the medical expenses related to the accident. They should also provide workers’ compensation. This does, of course, depend on the integrity of your employer, your employment contract, and the nature of your work. Most employers are legally required to provide workers’ compensation insurance in case an injury is caused to an employee that impairs their ability to work. The exceptions to this are agricultural workers, independent contractors, and domestic employees.

There are at least four certain sequential steps you should take right after you’ve been involved or injured in a work zone accident, depending on your status as a worker or bystander.

The company that employs you should be responsible for covering any of the medical expenses related to the accident.

1. Don’t Leave The Scene

Never abandon the scene of an accident you’re involved in, regardless of the circumstances. If you’re an employee, report the incident to a supervisor without delay. If you’re a motorist, pedestrian, or were in the vehicle involved, contact authorities immediately, and medical aid if necessary. This way, they can file an official report at the scene with all the important details, eyewitness accounts, and anything else that could be relevant to the case.

Additionally, driver construction tips as seen on this video may also help minimise accidents:

 

2. Get Legal Help

If you’ve been injured, get in touch with a personal injury lawyer as soon as possible. A simple online search for local attorneys will render the appropriate results, usually specific firms identified by attorney surnames, such as Fine, Farkash & Parlapiano, P.A. (P.A. is the legal abbreviation for a professional association). Seek medical help even if you’re not critically injured or in pain. Some injuries can have delayed physical symptoms, and may be more serious than they appear. You’ll need documentation of all medical attention that you receive following the incident.

3. Gather Evidence

Take photographs of the scene, the road conditions, any property damage, and anything else that could become important and valid evidence in a legal case. 

Also, have insurance information ready, regardless of who may be at fault, and exchange information with whoever else has been impacted or involved. Additionally, obtain a copy of the police report for your records, and for your lawyer, just in case. 

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If you’re an employee, you’ll need all the previously listed information and evidence to support any workers’ compensation claims, or to have your medical expenses covered by your employer. Filing for workers' compensation is similar to insurance claims, and should be fairly straightforward. It’s not a lawsuit, but it can come to that if your employer disputes the claims, and denies benefits requested by or owed to you as an employee.

4. Keep All Your Records

Keep records of all medical appointments, missed work, and loss of income as a result, and any other expenses related to the accident. This will help you and your lawyer calculate all financial losses for legal purposes. 

Conclusion

Not all work zone accidents are the direct result of negligence or lack of responsible safety measures. There are many contributing factors of an accident in a construction work zone, the primary and least controllable ones being weather conditions and heavy traffic congestion. If a construction company is found at fault, the reasons could be one or a combination of many, including improper signage, inadequate training of construction crews, unsafe working conditions or malfunctioning equipment. On the other hand, it could be related to the motorist’s impaired driving due to fatigue and exhaustion, vehicular malfunction, speeding or a lapse in attention. 

Whatever the cause or reason for the accident, anyone involved has a legal right to be represented by an attorney who specializes in such affairs, and to have their case investigated for potential injury and work compensation, plus reimbursement of consequential expenses.

How does an Expert Opinion impact upon such cases?

I work on catastrophic cases of Spinal Injury and Brain Injury - these are significant and life-changing episodes in a person’s life, where their life will never be the same again.  It is the role of the Expert to assess each individual, the extent, and consequences of their injuries upon their ability to function and participate in life and form the outline of their needs for the rest of their life.  This has to be a team effort, as the team of experts, which can be many in some cases, have their own clinical views but collaboratively, they bring together a wealth of knowledge that the clients and the Courts will use to help map out the future.  It is not without sadness at times, in that a client will see the less positive sides of their life, (in term of life expectancy and other factors that will impact upon them).  However, it is key that the experts who are approached to take on this role do so in a sensitive manner, providing guidance that is primarily for the Court, as well as documents that the client can refer to for the rest of their life.

What impact can an injury that requires physiotherapy have upon some one’s life? How should this shape the outcome of a legal case?

I do encounter some solicitors who are “in beyond their depth” and do not share that with their clients.

As Expert Physiotherapist, I have assessed some extremely challenging cases with significant loss of movement, sensation, and function, and then, on the other hand, those with no neurology complications, but significant levels of pain that have an equal impact upon function.  What I have learnt over the years, is that the same amount of tolerance and understanding must be given to those extremes of disability - as so many people have different views of disability, tolerance, and application.   No two reports will ever be the same - they might have the same headings, but the narrative and impact can vary so widely.  In my reports, I not only refer to the physical impact upon the clients and their physical needs, but I have also recognised how my assessment has been of help to other experts, to assist with care and equipment guidance, in particular.

Does the outcome often reflect the person’s needs? If not, what needs to change?

I believe that the success of the claim for the client comes from using the right legal team to lead the process, supported by the correct/best case manager and rehab team for the role. I do encounter some solicitors who are “in beyond their depth” and do not share that with their clients.

In practical terms, as a case manager and treating physiotherapist, I do see how cases progress after settlement (both for the positive and the less so).

Clients who can move from litigation to post settlement may find it a challenge - where they may see the insurers/defence team as the enemy and will focus their emotions on this which can result in one major emotion: anger.   What they do find challenging is that life does not change after settlement, and there is no one to vent their anger upon and that feeling of relief that the case is over is soon taken over by the reality of other challenges, i.e. how to make the funds last.

Good preparation is key; know your client’s name, family members and not to get lost in your papers, but to focus on them and of course, that includes silencing your phone.

When working with more established legal teams, there is a better transition but this is not necessarily the case with teams who have limited experience as clients can feel they are left high and dry.

What common challenges do you face when undergoing a client assessment. How do you overcome them?

I think the biggest challenge is to establish a good rapport with a client which will form a solid basis for good communication and smooth running.  It is harder if the client has had a poor experience with another Expert.  I do find that personally I get on well with people, and so the assessment does run well.  Perhaps the hardest part is when you are meeting a client who lives in the middle of nowhere, the postcode drops you in the middle of a field and you have no reception on your phone. I have a few strange stories to tell on that front.

Good preparation is key; know your client’s name, family members and not to get lost in your papers, but to focus on them and of course, that includes silencing your phone.

Over the COVID period, use of virtual platforms has been used to aid at least the subjective part of the assessment. However, in terms of physical examination - that has proven to be difficult.  I am trying a new method, using the client’s supporting staff and treating physiotherapist to demonstrate the movements I request, however, these reports will then require follow up assessments as I cannot rely upon the clinical skills of those people, and the other qualitative detail that my skill and expertise will draw out.  It will be good to be back on the road.

 

Jennifer M Whittall

Suite 3, Preston House, 6 Hawksworth Road, Central Park, Telford, TF2 9TU

Tel: 01952 290353
Email: enquiries@jmw-ltd.co.uk

www.jmw-ltd.co.uk

Jennifer M Whittall Ltd has been established since 2006.

I started out life as a Chartered Physiotherapist, working at the Midlands Centre For Spinal Injuries, based at the Robert Jones and Agnes Hunt Orthopaedic Hospital in 1982. It was there, under the guidance of Professor Waghi El Masri, and Keith Kushner of Potter Rees (at the time), I was introduced to the world of Expert Writing; that was in 1992 and the rest, as they say, is history.

As a Care Manager and then a Case Manager for Complete Care Holdings, alongside Barbara Scandrett,  I was able to experience greater exposure in this field; managing care packages (including ventilator-dependent clients), which widened my knowledge and progression into starting my company in 2006, specialising in Case Management, Rehabilitation and Expert Report writing.

As Lead Clinician, I manage a team of two other Clinical Case Managers (Lisa Thacker and Stuart Saunders), Assistants (Jodie Ashworth) and Rehabilitation Assistant (Sue Nelson).  We are supported by the Admin team (RP Business Support Solutions Ltd), to support over 40 Case Management Clients, their care and rehabilitation.  It is this hands-on approach that allows me to direct and guide teams and permits me to write Physiotherapy, Care, Equipment, and Immediate Needs Assessments for clients, with Spinal Cord Injury,  Head Injury (including CP) and other Orthopaedic conditions.  As a team, we support clients from as young 18 months, up to 80 plus years of age.  This knowledge and understanding allow the team of experts to understand the long-term effect of injuries and thus provides expert reports that are based on long-term, hands-on experience.

I also encourage the Associates to also maintain their clinical skills and they too run their own specialist businesses in OT, Care/Clinical training, and myself as a Physiotherapist.

 

My Achievements

Where do I start - they are not mine, but those of my clients that I have helped on their way.

Recently starting to help an amputee client look into whether he can progress with Osseo Integration  - that is still in progress.   He has progressed from Sit Skiing to mono skiing, and

Supporting so many of my clients to represent their country in Wheelchair Sports - Wheelchair Basketball and Rugby, Tennis, Badminton.

My clients who have gone on to be parents - and seeing so many happy faces.

The rehab teams I have brought together who are such inspiring individuals.

Those who have lived a fulling life and moved onto the next stage, doing things they never believed they could - too many to bring to mind, but the smiles will forever stay in my memory.

Finally  - coming out the other side of COVID; I am pleased to say not a single one of my clients have succumbed to this.

My Mottos

I, in fact, have two:

  • We are only as good as the last person we bring with us.
  • Never ask anyone to do something you would not do yourself.

My top three cases

From a financial point of view, I have worked with some significantly high profile cases - which have provided a great outcome for the client and legal team.

But the real reward is to see how clients progress after settlement and what is top for them.

  1. A young lady who is now a mentor for Back Up Trust and supports so many young people in her situation.
  2. A gentleman who was able to use his callipers to stand for his wedding photos.
  3. Another gentleman who is now competing in triathlons.

 

 

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