What Is Wrongful Death?

What Is Wrongful Death?

When a person dies due to the misconduct, negligence, or intentional harm of another person, surviving family members may be able to file a wrongful death lawsuit. A wrongful death lawsuit is a civil court action requiring grounds (a legally supported reason) for filing.

Wrongful death lawsuits aim to prove that not only did the deceased lose his/her life due to the negligence of another, but also that his/her family members were directly affected emotionally and financially due to the death. Therefore, wrongful death cases will determine the financial compensation the family members should receive.

How Does Someone Prove Wrongful Death?

To be successful in a wrongful death lawsuit, some elements must be proven:

  • The person’s death was caused by neglect or wrongful conduct.
  • The surviving family members have suffered measurable damages as a result of the death.

If a victim, who would have otherwise been able to file a personal injury claim had he/she survived, dies as a result of the action of another, a “survivorship” claim is appropriate.

Common grounds for wrongful death lawsuits may arise out of a number of circumstances:

  • Medical malpractice death
  • Vehicle fatalities
  • Exposure to toxic/hazardous work conditions
  • Death during a supervised activity

Who Can File a Wrongful Death Claim?

Every state has a wrongful death statute or set of statutes that set the standards for actions against wrongful death. A lawsuit for wrongful death may be brought by a representative of the estate of the deceased, including:

  • A spouse
  • Parents of minors
  • Extended family members, such as grandparents and siblings (in some states)
  • Any person named as executor of the estate

What Damages Can Be Awarded?

Once a death has been proven to be the result of a wrongful act, damages can be collected for the following:

  • Medical bills incurred prior to death
  • Funeral and burial expenses
  • The pain and suffering of the decedent prior to death
  • Lost wages and expected income
  • Mental anguish endured by the survivors
  • Loss of inheritance
  • Punitive damages intended to punish the offender and discourage similar actions (in some states)

If you believe that may have a wrongful death claim, contact us for a free consultation. We will help you understand your legal rights and determine if you should pursue a lawsuit.

What Is Elder Financial Abuse?

Also known as financial exploitation, elder financial abuse is defined by the Older Americans Act as “the fraudulent or otherwise illegal, unauthorized, or improper act or process of an individual, including a caregiver or fiduciary, that uses the resources of an older individual for monetary or personal benefit, profit, or gain, that results in depriving an older individual of the rightful access to, or use of, benefits, resources, belongings, or assets.”

In other words, any time a person illegally benefits from the assets of an elderly individual, elder financial abuse has occurred.

The National Adult Protective Services Association (NAPSA) reports that the rate of elder financial abuse is exceedingly high, with as many as 1 in 20 older adults reporting financial mistreatment. Sadly, less than 50% of financial exploitation cases are reported.

Who commits these acts?

Most often, those who take advantage of the elderly are “trusted” people, such as family members, friends, and caregivers. Other individuals such as nursing home staff, neighbors, pastors, and bank employees may also use their positions to influence the elderly. New romantic interests may also coerce the elderly into changing their finances. According to NAPSA, “90% of abusers are family members or trusted others.”

What are the common ways the elderly are exploited?

The most common areas in which the elderly are manipulated include the following:

  • Powers of attorney
  • Joint bank accounts
  • Deeds
  • Wills
  • Beneficiary designations

In these instances, the elderly victim often allows a trusted person access to his/her finances and assets through these documents. The trusted person will then use the funds for his/her own purposes, often neglecting the victim’s financial needs. This can lead to stolen money, assets, or properties. Some victims may find themselves suddenly destitute or homeless, without insurance, and robbed of their savings.

One recent study found that “of the seniors who experienced fraud, 1.8 % lost their home or other major assets, […] 6.7% skipped medical care, and 4.2% reduced their nutritional intake for budgetary reasons.”

Who is at risk?

Most at risk are those elderly people who suffer from mental or physical disabilities including Alzheimer’s or dementia, those who are single and isolated, those who are unfamiliar with financial matters or technology, and those with predictable financial patterns (such as a monthly pension or social security check).

There are two significant qualifications for victimization:

  • Lack of mental capacity – a condition in which an elderly person does not understand the nature and effect of his/her actions

OR

  • Undue influence – a situation in which a trusted person abuses his/her position and overcomes the free will of the elderly person with threats or intimidation

What should I look for if I suspect financial abuse?

Signs of elder financial exploitation can include the following:

  • Large bank withdrawals or transfers between accounts
  • Eviction notices, disconnected utilities, unpaid bills
  • Unexplained ATM withdrawals
  • Forged documents
  • Undocumented financial arrangements
  • Sudden and new “best friends”
  • Missing property and belongings
  • Substandard care

What can I do?

If you suspect that someone you know is a victim of elder financial abuse, contact an attorney immediately. An attorney should act quickly to stop assets from being transferred or, if they have been transferred, sue for damages.

If you believe you have a case, please contact us at 740-374-5346 or use our contact form. We will work with you to ensure the safety and financial security of your loved ones.

What Is an ERISA Dispute?

After the Employee Retirement Income Security Act of 1974 (ERISA) was enacted, federal law began regulating retirement plans and insurance for private employers in the United States.

The Act established legal guidelines for all private pension plans, investment practices, and the administration of these programs. Minimum standards regarding life insurance, disability, welfare, and health plans were established to protect individuals under these plans.

What Is ERISA Litigation?

ERISA was originally signed into law by President Gerald Ford. The Act initially came after issues related to pension plans, especially after the Studebaker Motor Company filed for bankruptcy and left company workers without funds and remedies for their lost pension plans.

For the last 35 years, ERISA has gone through more than forty amendments, with most of the changes occurring in the pension portion of the Act.

Modifications in 1985 and 1996 were the most notable and included the Consolidated Omnibus Budget Reconciliation Act and the Health Insurance Portability and Accountability Act.

The Department of Labor (DOL) oversees the Act; however, the law only applies to private employers or those not affiliated with the government. If a worker has a denied appeal and he or she has followed all guidelines established by ERISA, the next step could be to file a lawsuit against the employer.

ERISA allows a judge to review the case for possible abuse of discretion. The judge can examine and overturn the decision, but the judge’s authority is limited.

The Complexities of the ERISA Rules

ERISA is a very complex Act, and it is continuously changing to meet the demands of today’s worker. Regulations vary, and therefore, this area of the law is often too complicated for a layperson.

ERISA has a manual for employees and enforcement-related guidelines, but it is not designed to help you interpret the Act. For an employer to be guilty of civil violations of ERISA, the following elements must be present:

  • Failure to Execute an Employee-Favored Plan – The company fails to operate the benefit plan with prudence and in the interest of the employees.
  • Asset Usage and Benefits – Under ERISA, employers have the right to use benefits for certain parties, but cannot solely do so to help the plan sponsor, parties related to the individuals, or the program’s administrator.
  • Valuing Assets – Employers cannot improperly value assets or ignore current fair market values. Also, assets cannot be held in a trust.
  • Failure to Monitor – Employers must monitor and carefully select all service providers related to their plan. Inability to do so is a violation of ERISA.
  • Adverse Actions Against Employees – A company cannot take any actions against an employee for exercising their rights under the plan, including terminating, fines, or discriminating against workers.

When Is an ERISA Claim Necessary?

There are two types of claims filed under ERISA: a benefit claim and a breach of fiduciary duty claim.

  • Benefit claims include the following:
  • Health insurance policies
  • Disability insurance and payment coverage
  • Life insurance
  • COBRA policies
  • Vacation benefits

Fiduciary breach claims focus on the actions of those running the plan. If the person does not follow instructions, misrepresents facts to participants or fails to make prudent investments, they could be in violation of their fiduciary duty.

ERISA Limits Damages

Even if you have an ERISA claim, know that the Act limits your damages. You can request the benefits you have lost and interest in past due benefits, but you will not receive pain and suffering or other non-economic damages. Some judges will allow attorney’s fees and the costs of starting and litigating your lawsuit. However, you will not be compensated for administrative remedies and the time spent on those resources.

If you have been denied valid benefits from your employer, or you feel that your employer has breached their duty to you as an employee, you can speak with an attorney that practices ERISA claims. Attorney Ethan Vessels can assist you with your ERISA case.

Schedule a no-obligation consultation at 740-374-5346.

Why Should I Have Uninsured and Underinsured Motorist Coverage?

It is estimated that 1 out of 7 drivers in the U.S. are uninsured or underinsured. If you are involved in an accident where the other driver is at-fault, typically their liability coverage would be responsible for any medical bills and auto repair costs. However, if the driver does not carry any – or not enough – insurance, you may be left paying out of pocket.

In order to protect yourself, it is recommended that you purchase uninsured and/or underinsured motorist coverage from your insurance company. Regular car insurance coverage protects other drivers from damages you cause, and uninsured/underinsured coverage protects you from damages caused by other drivers.

Uninsured/Underinsured Motorist Coverage

It is important to note that the uninsured/underinsured policies provide liability coverage for the other driver. Therefore, you still have to prove that the other driver is at fault, that your injuries were caused by the accident, and that the treatment for those injuries was reasonable.

Purchasing this coverage is a backup plan, as is all insurance purchases. No one plans on getting into an accident, but they happen, and sometimes they happen due to the fault of either an uninsured or underinsured driver.

If you are involved in this type of accident, having the extra insurance allows the insurance company to cover all of your costs up to the policy’s limit. If the at-fault driver only has the bare minimum coverage required, then he or she likely will not be able to cover all the expenses, and the underinsured coverage will fill in the gaps.

Uninsured/Underinsured Coverage Usually Offers Two Types of Protection

Bodily Injuries Coverage (UMBI) The uninsured and underinsured motorist coverage can cover not only car damages but bodily injuries as well if you choose to add this coverage. The bodily injury insurance would cover medical expenses, lost wages, pain and suffering and funeral costs for you and any passengers in your vehicle.

Property Damage Coverage (UMPD) This type of coverage is not offered in all states, but if available, it may be worth consideration. This type of protection covers damages made to personal properties such as a house, fence, or even cell phones and other electronics.

State Requirements

Insurance requirements vary by state. Approximately half of all states require some type of uninsured/underinsured motorist coverage. Some states even require that the coverage is offered, and if you want to decline, you must put it in writing.

Call an Attorney Who Has Experience with Uninsured/Underinsured Coverage

If you have been in an accident where the at-fault driver does not carry enough or any insurance, you should call an attorney with experience. Attorney Ethan Vessels represents clients from Ohio and West Virginia. He is the author of the book “I have been injured. What are my legal rights?” If you would like to request a free copy of the book or schedule a consultation, please call 740-374-5346 or fill out our online contact form.

Tips on Long-Term Disability Claims & ERISA

Tips on Long-Term Disability Claims & ERISA

Life can be unpredictable. Many of us find comfort in having backup plans and safety nets for our lives. People open a savings account for unexpected expenses, families own two vehicles should one break down, and many employees carry long-term disability (LTD) insurance through their employer in case they get hurt and are unable to work.

Employer-provided LTD policies are governed by a federal law known as ERISA, the Employee Retirement Income Security Act. LTD applications are reviewed by a claim administrator, and these claim administrators work for the insurance company. There is an obvious conflict of interest, and therefore, claims are often denied. Claim administrators may feel pressured to deny claims, even deserving ones, so the insurance company they work for saves money. Getting an LTD claim approved is a complicated process. Here are some common reasons for these claims being denied, as well as mistakes to avoid during the process.

Missing the deadline.

Most employer-provided insurance plans give 180 days to appeal an initial denial. Look for the deadline on the notice of denial. It is recommended to use this time frame to talk to an LTD attorney who can gather evidence and complete the required documents. The evidence and documents are submitted to the insurance company and are contained in the “administrative record” for your case.

The administrative record is something that must be requested from the insurance company. This record has all the information about why your claim was denied, as well as the medical reports from doctors. Knowing exactly why your claim was denied will help your attorney know how to defend you.

Additionally, if your claim goes through all the administrative appeal channels without being approved, the claim could go all the way to federal court. Only the information in the administrative record is what will be considered when deciding your case. This is part of ERISA law. You can not wait until court to present records and/or provider statements, as they will not be taken into account. They must be added to the administrative record first.

Providing inadequate medical evidence.

When involved in an LTD claim, you must go to regular medical appointments. The insurance company expects you to make the necessary visits to your doctor or specialists. You should not miss any appointments, or it could be used against you as evidence that you are not disabled.

Your claim could be denied because the insurance company does not have the appropriate medical records. Though it may be the insurance company’s fault for not requesting them, you or your attorney will need to follow up and ask for the records they, and then double check to make sure no records are missing.

One of the most crucial elements in proving your disability is your doctor’s opinion and statement. If your doctor is willing to write a detailed letter supporting your disability and stating what your limitations are, it will go a long way in helping to win your claim.

It is also important to get reports from experts, which could include a functional capacity evaluation report and a vocational expert report. A functional capacity report is an objective test performed by a physical therapist. You will be tested for various job-related tasks like sitting, standing, pushing, pulling, and lifting. A vocational expert is someone who knows about availability in the job market and what skills are needed to perform specific jobs. Your insurance company will likely have their own vocational expert write a report, which will likely lean in favor of the insurance company. You or your attorney may need to find a vocational expert of your own to help with your claim.

Failure to meet the policy’s definition of disabled.

Be sure to check your LTD policy summary and find its definition of disability. It will typically define disability one of two ways. It will either define disability as being medically unable to carry out the duties of your “own occupation,” or  as the inability to perform the duties of “any occupation.” There is a big difference between the two. If you are an injured construction worker applying for LTD, and your policy defines disability under the description of “any occupation,” then you may still be expected to go out and find a job.

Your insurance company is allowed to ask investigators to follow you and take video surveillance. If they record you doing anything a disabled person should not be able to, your claim could get denied, or if you are already receiving benefits, they could be canceled.

For example, if you suffer from chronic back pain, you likely have good days and bad days. Most likely, your good days aren’t pain-free, but you may have enough energy to go out and try to do light gardening or landscaping around your house. If the investigator should catch you on this good day and take footage of you performing this work, it might be enough to justify a denial. The best advice is to simply follow your doctor’s restrictions at all times.  

Talk with a long-term disability attorney.

If your initial long-term disability application has been denied, consult with an attorney, as that is the best way to increase your chance of obtaining approval. A long-term disability lawyer, such as Ethan Vessels, is familiar with the rules and know how the insurance companies operate.

Often, when people try to handle the appeals process on their own, important information can get left out of the appeal. This really plays to the advantage of the insurance company. As stated earlier, if evidence is not submitted in the administrative record during the internal appeals process, it cannot be used later in court.

Contact Fields, Dehmlow & Vessels, LLC to speak with Ethan Vessels, an experienced long-term disability attorney. Call us at 740-374-5346 or fill out our online contact form.

The “Pit Bull” Lawyer

The “Pit Bull” Lawyer

Over the years, it has been said that clients want a “bull dog” lawyer or a “pit bull” lawyer.

Although the true definition of this is uncertain sometimes, it can be presumed that would entail an angry lawyer. Does a client benefit from a mean lawyer? A win-at-all-costs lawyer? A lawyer who refuses to concede anything? A lawyer set to crush the opposition?

No. This lawyer will not further a client’s interests any more than any other type of lawyer. And, this lawyer often makes things worse for the client.

Firm? Yes. But, as an experienced trial lawyer once said, “You don’t have to be ‘cross’ to ‘cross-examine.’” Friendly and firm can co-exist.

What quality should you be looking for?

Persistence. The lawyer who is always moving the case forward gets the best results. Rather than a “pit bull,” you want a “hound dog.” This lawyer always has the ball in the other side’s court and pushing the other side to respond. In the world of litigation, persistence is aggressive.

Your opponent invariably does not really care how mean or nasty your lawyer is. If your lawyer makes them work and spend money, they hate that. If your lawyer turns over the stones and uncovers the evidence that will make your opponent lose in court, they really hate that. That is when settlements happen.

Contact Us for Results

If you are looking for a persistent attorney, contact us at Fields, Dehmlow & Vessels, LLC. Ethan Vessels is one of fewer than 100 National Board of Trial Advocacy board-certified civil trial advocates in Ohio. Ethan limits his practice exclusively to civil cases involving significant damage: serious personal injury, oil and gas litigation, employee benefits litigation, insurance disputes, wrongful death, and business litigation. Ethan often represents the little guy against the big guy. In the majority of his cases, Ethan works on a contingent fee, sharing the financial risks of litigation with his clients. Give us a call today at 740.374.5346 or fill out our contact form and we will get in touch with you.

 

Herniated Discs

As discussed in my previous post regarding neck and back injuries, auto collisions can cause painful spinal injuries.  Less common than sprains or strains is the herniated disc.

There are 33 vertebrae in the human spine.  These are divided into four sections: cervical  (neck), thoracic  (mid-back between the rib cage), lumbar  (the lower back), and the sacral vertebrae (in the hip structure, including the tail bone).   There is a cushion between each vertebra that acts as a “shock absorber” if you will.  This disc has a flexible, solid outer shell with a gelatinous fluid within.

The outer shell of these discs can rupture, bulge, or herniate (a balloon-like bulge).  When this happens, the disc can press on the spinal cord or press on other nerves that exit the vertebrae into other parts of the body.  This can be very painful.  The bulging disc interrupts the normal function of the nerves.  Those suffering from herniated or bulging discs can experience electrical shock sensations in their arms or legs, numbness, muscle weakness, and sometimes even problems with bowel or urinary function. Herniated discs are usually diagnosed using an MRI.

Auto collisions and other spinal trauma can cause herniated discs.  Disc injuries are most common at the C5-6 vertebrae in the neck and at L5-S1 in the low back.  Sometimes these injuries are so serious that they require surgery.

Insurance companies and their doctors and lawyers invariably argue that the disc herniation was not caused by the trauma.  They usually claim that the bulging or herniated disc existed before the trauma and was caused by aging alone.  Or, they will try to find some other trauma to blame.  Or, they will claim that the bulging is “minor” and not pressing on any nerves.

This is where lawyering makes a difference.  Your lawyer should investigate: (1) Have you ever suffered from similar symptoms in the past? (2) Are there gaps in treatment or reporting of symptoms?  (3) What do your doctors say?  (4) What does the MRI show?

When confronting the insurance companies and their doctors, your lawyer must make clear that: (1) your disc injuries arose because of the trauma you suffered in this incident; (2) these symptoms did not spontaneously arise;  (3) there is no other logical explanation for your disc injury symptoms; and (4) your herniated disc is indeed painful and debilitating. Your lawyer must provide clarity.

 

-Ethan Vessels