Iowa Legal and Current Events Blog

I’ve found myself devoting much of my work time to filing literally every claim I am currently handling.  This is not a good development.

Years ago, I was able to resolve many claims promptly and reasonably with insurance adjusters.  It was prudent practice to wait on filing cases until the case was fully ready for settlement.  In most cases, this would completely avoid litigation, and the need for the insurance company to hire a lawyer.  The result was that cases were concluded about a year faster, and with less expense for all involved.  That is no longer the situation.

Now, it seems that to get an insurance company to talk seriously (as in reasonably) about settlement, you have to file the case, go through paper discovery and depositions, and have a trial date looming ominously.  Then, “on the courthouse steps” the insurance adjusters finally want to talk settlement.  So, insurance industry, when you find yourselves asking “why are you filing your cases right away?” the answer is to avoid the absurd delays caused by the complete inattention of most of the insurance industry.

I file my clients’ cases right away, because if I wait untll the cases are settlement-ready, and then wait several more weeks until I figure out that the insurance adjuster isn’t going to be reasonable and timely talk settlement, I end up wasting months toward the ultimate conclusion of the case.  So, I file right away.  The insurance industry hires their lawyers right away.  The defense lawyers educate the insurance adjusters why they should consider prompt settlement.

The insurance adjusters nonetheless ignore their lawyers until the last minute, when there is a trial date on the immediate horizon.  Then guess what?  The insurance adjusters get reasonable, pay attention to the case, and get it settled on reasonable terms.  The same settlement could have been reached months earlier and without the expenditure of thousands of dollars, but the insurance industry has forced my hand.  So, I file right away.  I do a better job for my clients, because I force the insurance adjusters to pay attention to their files.  The case gets concluded faster.

You, insurance industry, have brought about this situation.  It is unfortunate, but it is on your doorstep.  You’re not doing your jobs.  You’re causing needless litigation.  When the insurance industry predictably cries about all the lawsuits, don’t listen.  Do the same thing the insurance industry does when lawyers try to reach early resolution of cases: Ignore them.

The snow is finally in the rearview mirror, and serious riding season is fully upon us. If you enjoy participating in organized rides, there are plenty of them out there. One resource I rely upon to find rides is my local Harley store, Metro Harley-Davidson. For example, Metro sponsored a pancake breakfast followed by a 100 mile ride this past Saturday. Perhaps it was because it was a corporate-sponsored ride, but there were no scheduled “watering hole” stops as is the custom for most organized rides.

Speaking of watering holes, I came across a couple excellent spots thanks to an ad I saw in my April 2007 ABATE of Iowa Free Way Flyer. I had already planned a quick weekend getaway to Galena, IL with my wife, my Fat Boy being the chosen mode of transportation. Thanks to my Free Way Flyer, I checked out two great biker bars in Savannah, IL - Poopy’s and the Iron Horse Social Club.

Both places are must-stops if you’re biking along the Mississippi River in Iowa or Illinois. My recommendation is that you swing by the Iron Horse first, check out the antique bikes, catch some great tunes, and toss back a couple beverages of choice. Stop number two should be Poopy’s, which has recently relocated to the highway 84 viaduct in Savannah. Poopy’s has a large restaurant, a store for buying gear or one of their souvenier t-shirts, a shop to service and repair your bike, a tattoo parlor, outdoor stage and covered seating area, and perhaps the highlight: free tent camping. I don’t mean to be a salesman for Poopy’s, but I loved that place. Definitely a destination for future rides.

Oh yeah, back to rides. The ABATE of Iowa Freedom Flyer is chock-full of organized riding opportunities (look under Events). The ABATE Freedom Rally near Algona, IA (June 29, 30, and July 1) promises to be an event worth attending. If you can’t wait that long for an ABATE rally, try ABATE of Wisonsin’s Summer Hummer (official state rally) June 15 - 17. Of course, if you’re really serious about your biker rallies, you have to consider the 67th Annual Sturgis Motorcycle Rally, August 6 - 12.

You can find organized rides in Iowa or any other state at Weasel’s Sringfield. The nation-wide listings ensure that you can find a ride wherever you may roam. Another great source of ride information is your local biker bar. In Cedar Rapids, we’re fortunate to have two, the Chrome Horse Saloon & Slop House, and the Fifth Gear, and both regularly have postings of upcoming rides. Bottom line: You should be able to find an organized ride close to home any weekend of riding season.
Enough for today. Hope to see you out there.

The Iowa Bar Association Young Lawyers Division recently published a brochure titled “On Your Own” Your Legal Rights and Responsabilities as an Adult.  The brochure gives summaries of important legal issues which commonly effect everyday people.

The “Employment” section provides an excellent overview of Iowa’s workers’ compensation system and some basic things every worker needs to be aware of.  For your convenience I have pasted the overview on workers’ compensation below.  If you have had a work injury or would like more information on Iowa’s workers’ compensation system, do not hesitate to contact the Pete Leehey Law Firm.

If you are injured in the course of your employment, you are entitled to compensation and protections provided under Iowa’s Worker’s Compensation law. A compensable injury is one that interferes with a bodily function, or impairs bodily health, and that grew out of or occurred in the course of your employment. Some injuries occur over time from the accumulation of small and/or repeated actions. Others occur because of a single acute and traumatic event.All employers, no matter how small, are covered by worker’s compensation law. There are many types of benefits provided under the worker’s compensation law, including payment of medical expenses, paid leave for work time lost due to the injury and/or treatment for it, rehabilitation benefits, death benefits, industrial disability benefits, and disability benefits.

If you are injured in the course of your employment, you should immediately notify your employer of the injury and how it occurred—but do not wait more than 90 days after the discovery of your injury to report it to your employer. 
  

Reporting of Claims: An Employer’s First Report of injury must be filed with the Workers’ Compensation Commissioner when an employee alleges an injury arising out of and in the course of employment, which results in time lost from work of more than three days, permanent injury, or death. The report is to be filed with the Workers’ Compensation Commissioner within four days of notice or knowledge of the injury. The report is also to be filed with the insurer so the employee’s claim can receive proper consideration. Forms for reporting injuries may be obtained from the workers’ compensation commissioner.
Notice of Injury: The law provides that the employer must have notice or knowledge of an alleged injury within 90 days of its occurrence; if not, benefits may be denied. The 90-day period begins to run when the employee knew, or should have known, the injury arose out of and in the course of employment. The employee must notify the employer of the injury within 90 days. It is best to notify your employer in writing and to keep a copy of the notice for your own records. If a 90-day notice is not given by the worker, all rights to workers’ compensation benefits are lost, unless the employer has actual notice of the injury.
Statute of Limitations: The statute of limitations is the period within which you must bring a claim. Generally, the statute of limitations for an injury is two years from the date of the injury. If you’ve been paid weekly workers’ compensation benefits, then the statute of limitations is three years from the date of the check that was the last weekly payment. Payment of medical benefits (doctor bills, hospital bills, etc.) does not extend the two years from the date of injury that you normally have within which you must file suit. If you’ve received medical benefits, but not weekly checks for your time off work, or weekly checks from someone other than the workers’ compensation insurance company, then you only have two years from the date of injury to file. If you don’t file within the statute of limitations period, then your right to file a claim based upon your injury will be lost forever.

For more information, contact Kent Smith at the Pete Leehey Law Firm, P.C. and check out the Iowa Division of Workers’ Compensation website.

Yesterday’s shootings at Virginia Tech demonstrate just how unprepared most college campuses are for rampaging lunatics.  Perhaps more troubling is that despite other “red flag” incidents, Virginia Tech appears to have been unprepared to deal with an emergent situation.

Campus violence is nothing new.  In 1987, Jeanne Clery was raped and murdered in her dorm room on the campus of Lehigh University.  This is but one of any number of sad stories that play out all too regularly on college campuses, but this time, somebody took action.  Jeanne Clery’s parents formed Security on Campus, Inc. in response to their daughter’s death.  That organization has devised an in-depth campus safety audit questionnaire, which should minimally be a starting point in achieving proper campus security.

The Virginia Tech shootings uncovered a wound at the University of Iowa, which had endured a multi-fatality campus shooting in November 1991.  At the time, campus police said they were “totally unprepared” for such an emergency.  Unfortunately, not much appears to have changed despite this and lessons such as Columbine.
No doubt there are measures that could have and should have been taken at Virginia Tech that could have helped avert this disaster.  Perhaps this is a wake-up call for American colleges, for if a sole gunman can wreak this measure of havoc, what might an organized terrorist group be able to accomplish?

You have been injured at work.  The company doctor has taken you “off work” for at least a week.  Your employer agrees with the doctor and has you stay home until you recover from your injury. 

How and when will you get paid?  Who pays you?  Will your rate of pay be as much?

Iowa Workers’ Compensation law requires temporary disability benefits to start on the fourth day following the injury assuming the injured worker is not working.  Usually, your employer will have workers’ compensation insurance and the employer’s insurance will pay you.  Generally, the weekly rate of compensation is around 80% of the employee’s “average weekly spendable earnings” at the time of the injury.”  The spendable weekly earnings are gross weekly earning less payroll taxes.

I see in my practice, more often than not, insurance companies underpaying the correct rate of pay for injured workers.  It is important to consult with an attorney if you have been injured at work.  An attorney can make sure you’re receiving the correct amount of pay while your injured, receive the appropriate medical care, and help you get your benefits with less delay.

As they say on The Insider, “this just in” from Bret Hayworth of the Sioux City Journal:

Iowa Senate Republicans backed away from opposition to the appointment of Sioux City native Chris Godfrey as commissioner of the Iowa Workers’ Compensation Division.

Days after the Republican caucus threatened to bury Godfrey’s nomination, an about face occurred Wednesday and Godfrey’s nomination, stalled since January 2006, was approved by the Senate on a 48-2 vote.

The two Republican senators voting against the nomination were Ron Wieck of Sioux City and David Hartsuch of Bettendorf. The other five senators from Northwest Iowa, Steve Warnstadt, D-Sioux City; David Johnson, R-Ocheyedan; Steve Kettering, R-Lake View; Dave Mulder, R-Sioux Center; and Jim Seymour, R-Woodbine, voted to confirm Godfrey.

On Friday Wieck said he had concerns about Godfrey’s fitness for the office, and added Republicans were disgruntled on having little influence on legislation in the 2007 year, so they might scuttle his and other pending nominations.

Speaking by phone, Godfrey said being in the Senate chambers as the vote unfolded was pleasing.

He said he wasn’t sure why Republicans vowing to block his appointment relented, but said perhaps it was his testimony on April 4 to the Senate Labor and Business Relations Committee. Godfrey said he’d highlighted the work he’d done since holding the office on the interim commissioner basis since being nominated by then Gov. Tom Vilsack in January 2006.

Godfrey touted moving cases more speedily through the division over the last 16 months, and improving morale in the Workers’ Compensation Division.

He also noted that after his committee testimony last week, Republican Sen. Pat Ward approached him and told him she thought he’d done a fine job. Perhaps his appointment being approved was “a testimony to the sway Senator Ward has within her caucus,” Godfrey offered.

The Republicans, while in the minority since Democrats hold the chamber on a 30-20 count, were in a position to block the appointment, since Senate confirmations require a two-thirds vote, or 34 votes.

A 1991 Sioux City East High graduate who later worked for IBP, Godfrey said the Senate vote “was a relief. It is nice to know you’ve got this chapter behind you and can focus on other things.” He said his parents, Jim and Kay Godfrey of Sioux City, were enthused to have their son fully in the state post.

In discussing his opposition to Godfrey last week Wieck said, “there are some issues with case history.” Wieck gave the example where a division deputy commissioner ruled a fine of $300 to a business, but then Godfrey reviewed it and increased that amount to $20,000.

Warnstadt said Godfrey, who holds undergraduate and law degrees from Drake University, was a deserving candidate, since he had the backing of both labor unions and business groups.

At the time he appointed him, Vilsack said Godfrey’s “expertise in working with both plaintiffs and defendants in the area of workers’ compensation law makes him an ideal candidate to take on the responsibility of leading the Workers’ Compensation Division.”

Iowa employees have been covered by the workers’ compensation law under most employment relationships since 1913, and the division is responsible for reviewing cases in which employees claim injury while working.Bret Hayworth may be reached at (712) 293.4203 or brethayworth@siouxcityjournal.com

Thanks to Barry Moranville of the Iowa Association of Workers’ Compensation Lawyers, Inc. for providing this article.

For us midwesterners, motorcycle season is upon us. For those in climates conducive to year-round riding, spring may not hold out this special joy for you. As we hit the highways, it is important to keep in mind safe riding principles.

Here’s a telling statistic: roughly 90% of all motorcyclists involved in crashes were self-taught or taught by friends. The lesson here is obvious - if you’re considering taking up motorcycling, find a motorcycle riding course. Chances are, you can find a motorcycle riding course for beginning or experienced riders in your community or nearby. A couple examples of motorcycle rider training readily available are courses sponsored by Harley-Davidson and ABATE of Iowa. The relatively small amount of time and money are a wise investment.

Once you have the necessary skill package and are ready to hit the road, it is important to become properly outfitted. I often say that buying a Harley was my excuse to buy lots of black leather, but the reality is that the leathers or other protective gear may at some point be the only thing between you and the pavement. There are any number of outlets for purchasing the gear you need.

I like to start my gear-shopping missions by seeing what’s available on ebay. I never cease to be amazed at the availability of what I want on ebay, and most importantly, by how much money I can save. If it’s the latest and greatest riding apparel you have in mind, an excellent place to start is Harley-Davidson. Another great option is J&P Cycles, where you can find excellent gear and usually save yourself some serious bucks.

While it would seem to be a no-brainer (no pun intended), one important decision every motorcyclist must make, at least in states like Iowa with no helmet laws, is whether to wear a helmet. When I bought my first bike, I fully intended to wear a helmet at all times. Over time, however, I found myself making excuses for not wearing my helmet. That is, until this past winter, when a new client involved in a motorcycle crash detailed how thankful he was that he had a helmet on at the time a car turned in front of him, sending him head-first into the pavement.

I stand by every person’s right to make their own decision whether to wear a helmet while motorcycling. Telling statistics, however are that helmets are estimated to be 29 percent effective in preventing fatal injuries, and 67 percent effective in preventing brain injuries for motorcyclists. If you decide to opt for a helmet, the above sources I mentioned for gear are all excellent. With my new resolve to wear a helmet at all times came a new helmet to encourage me. I picked this one up online from Head Trip Helmets, a nice-looking lid that minimizes the “mushroom head” look most motorcyclists detest. If you need more convincing, check out the testimonials on the Head Trip Helmets site.

Damn, just writing this is getting me jacked up to do some riding! I see the unseasonal snow we received yesterday is just about gone. Tomorrow, I don my leathers and helmet, and hit the road. Be safe!

Johnson & Johnson, the maker of Listerine mouth rinse, has announced it is recalling one of its rinses due to tests showing contamination from microorganisms.  The recall affects the Glacier Mint and Bubble Blast flavors of the recently launched Listerine Agent Cool Blue plaque-detecting rinse.  This mouthwash is marketed primarily for use by children.

The company said there have been no reports of health problems from the contamination.  Consumers are advised to stop using the product and throw it away.

In a verdict applauded statewide by workers’ lawyers, a federal jury entered a multi-million dollar award to a Des Moines man whose workers’ compensation claim was arbitrarily denied.  For more detail on the case, see the Des Moines Register article.  For all the talk about workers’ compensation abuse, the verdict is validation that the analysis of “abuse” of the workers’ compensation system should focus on insurance company claims practices.

Insurance adjusters have a duty to investigate workers’ compensation claims, and to deny a claim only when there is evidence that the injury is not work-related.  The opinion of the insurance adjuster is not sufficient; the opinion must be backed up by actual evidence.

Typically, workers’ compensation claims are denied on the ground that the injury was not caused by the work incident alleged.  Even if there is evidence that the worker had a similar preexisting condition, the claims adjuster must still seek medical opinion stating whether the injury was caused by the work incident.  The way to accomplish this critical aspect of workers’ compensation claims investigation is to obtain a written opinion from the treating doctor.  Only then is the insurance company on safe ground to deny a workers’ compensation claim on the ground that the injury was not caused by the work incident.  For more information on various workers’ compensation issues, see our workers’ compensation FAQ.