Information for injured persons and Social Security disability claimants in Texas and throughout the United States. By Robert A. Kraft
About My Blog
The purpose of this blog is to provide information to people who have been injured due to negligence, and to those who have filed for Social Security disability benefits, or who are considering filing for Social Security disability benefits.
Our Dallas, Texas personal injury and Social Security disability lawyers want to help. To find answers to your questions, please use the Google search box or the Categories list below. If you still don't find what you need, just send an e-mail to me at firstname.lastname@example.org and I'll get right back to you.
In continuing coverage, Medscape reports that the FDA's proposal for "safe-use" medications is causing "alarm" for "the American Medical Association (AMA) and other medical societies, which see the beginnings of an end-run around physician authority." The FDA has identified conditions for drugs qualifying for "safe use" that might even require "an initial visit to a clinician for a prescription but allow more automatic refills." Sandra Fryhofer, MD, chair-elect of the AMA Council on Science and Public Health, is quoted saying that safe-use would "undermine the relationship that a patient has with his or her physician." Endocrine Society President Janet Hall, MD, said that the FDA "should exclude diabetes drugs from a new safe-use category." Meanwhile, "pharmacist groups lined up behind the proposal includ[ing] the American Pharmacists Association (APA), the National Community Pharmacists Association, the Academy of Managed Care Pharmacy, and the National Association of Boards of Pharmacy."
From the American Association for Justice press release.
The older I get, the more I realize that people and their problems are much the same around the world. I have employees and friends who were born in foreign countries or whose parents were born elsewhere and immigrated here. Listening to their stories I appreciate the United States more, but I have come to know that aside from politics, people are not that different from country to country. Unfortunately, that means we all have the same kinds of problems, including disability. In the United States one way we deal with disability is through the Social Security system. My English friend Mr. Jim Loxley of My Compensation explains in this guest post a little about how disability is handled in the United Kingdom. And sure enough, both countries have the same types of problems. I especially like the last sentence of Jim's article.
Working in the legal sector representing disabled people (often in the arena of discrimination, in my case) it can be quite motivating seeing justice being done. Much like Bob Kraft, however, I often find myself frustrated with the government's poor implementation of measures to the legal systems surrounding disabled people. It’s difficult not to ask the question: why is it like this? This is a recent story on an example of the kind of things that happen in the UK that I thought highlighted the issue and was something of an echo of the US Social Security disability fund depletion.
The government has recently suggested a considerable delay to the publication of the new Disability Strategy. The on-going consultations on the disability strategy came to an end in early March with promises having been made that the Springtime would see the government publish the results. However, with a progress report on a wider Equality Strategy being published earlier on this week, the announcement was made that the Disability Strategy would now be brought to the public eye “later this year”. In December of last year a government document was published called Fulfilling Potential and provided a number of clues on which direction the government would be taking the Disability Strategy. In this document, the government asked disabled people to make suggestions on practical ways of making a real difference to their lives. Input from disabled people seems like a good move.
The Fulfilling Potential document outlined three key areas. An increase to individual control and choice, ensuring appropriate support, and making efforts to change attitudes and behavior toward disabled people. However, Maria Miller who is the Conservative’s Minister for disabled people, made the warning at the document’s introduction, saying that there was a challenging economic climate so we have to think about what priorities should be. It has been reported that over 5,000 individuals attended a number of events during the Disability Strategy consultation or submitted feedback via writing.
Miller has faced considerable disappointment from disabled people over the government cuts and reforms to disability benefits and services in addition to its approach to the equality agenda. At this stage the Office for Disability Issues, which looks after the Disability Strategy, has refused to comment.
With the recent issues in the solvency of the US Social Security disability security fund and Medicare, it seems that things are being somewhat mirrored in the UK. It often seems to me that political issues surrounding the disabled or injured are sidelined or deemed less important. Frankly though, I’m of the opinion that the rest of us should be waiting. If someone in a wheelchair was approaching a door that needed opening, most people with common decency would respectfully oblige; and I can’t help but feel this is a fact which the political arena should reflect.
Here's some good news, I guess. If you're killed in an auto collision you probably won't even know it. According to an article at io9.com, our brains react too slowly to comprehend the almost instantaneous sequence of events that lead to sudden death in a car crash.
The article is not exactly pleasant to read, but is certainly interesting. Here are excerpts:
Ever wonder what it would be like to get shot in the head, or have your face smash into a car's windshield? Well, you can stop wondering, because you'll never know — even if it does happen to you.
There are at least two major reasons why, if you die in a sudden and violent fashion, you'll literally never know what hit you. First, our brains process information too slowly. Second, there's the issue of the integrity of the cognitive functions that are responsible for conscious experience. Let's take those one by one.
Eagleman says that it takes time for signals to move through the brain's grey matter that's situated around the cortex. These signals travel at a rate of one meter per second — a speed that Eagleman says is "insanely slow," when compared to electricity. "It takes a while for the brain to know what's happening," he says, "so we're always living in the past." In fact, Eagleman points out that our autonomous motor systems actually react faster to external stimuli than conscious awareness.
To get an appreciation of the slowness of human perception, Eagleman says it's helpful to compare it to the speed of mechanical devices. Take the anatomy of a car accident for example. It takes as long as 150 to 300 milliseconds (ms) to be aware of a collision after it happens. Other neuroscientists think it can take as much as 500 ms.
Now this might not sound like a lot of time, but think of what happens during a car accident. At the 1 ms mark, the car's pressure sensor detects a collision, and at 8.5 ms the airbag system fires. At the 15 ms mark, the car starts to absorb the impact to a significant degree. It's not until the 17 ms mark that the occupant starts to make contact with the airbag, with the maximum force of the collision reaching its apex at the 30 ms point. At the 50 ms mark, the safety cell begins to rebound, and after 70 ms the passenger moves back towards the middle of car — the point at which crash-test engineers declare the event as "complete."
And then, around the 150 to 300 ms mark, the occupant finally becomes aware of the collision.
That's assuming of course that an airbag was deployed or that the occupant was wearing a seatbelt. Otherwise, the person wouldn't have known that they were even in a car accident.
Which, if the accident was fatal, is not necessarily a bad thing.
No brain, no mind
If the parts of your brain that give rise to consciousness are severely impaired, then all awareness comes to a grinding halt. These all-important areas include the frontal cortex (attention and short-term memory), thalamus (regulation of consciousness and alertness), temporal gyrus (perception and comprehension), and the hippocampus (memory and spatial awareness). According to Eagleman, damage to the cortex and thalamus will often induce a comatose state.
But not all brain trauma is catastrophic in this way. Eagleman notes that conscious awareness can remain intact when the cerebellum (the "mini brain") is damaged. Moreover, it's not yet known how consciousness gets built from pieces of these parts.
"The whole system does seem to be involved in conscious awareness," says Eagleman, "but as more parts of the brain gets damaged, consciousness gets degraded." Consciousness is a fragile thing that appears to be dependent on consistent electrical signals traveling around the brain. Subsequently, hard blows to the head will cause the system to "reboot". When experiencing a massive head trauma, like a head hitting a dashboard, the brain is smashed around the inside of the skull, often causing fatal results - results that could never really be perceived.
After 41 years practicing personal injury law, I have found there are very few insurance companies I enjoy dealing with. A few are right at the bottom of the list though, and Fred Loya Insurance is one of those. So it came as no surprise to me when the Dallas Morning News reported that Loya Insurance had to pay a $300,000 fine for deceptive advertising practices. That money really should have gone to the Loya customers who were tricked by the advertising, but the state said it was unable to determine the names and addresses of the customers, so the state took the money. Here are excerpts from the newspaper article:
Loya Insurance Co., a leading auto insurer in Texas, has been fined $300,000 by the Texas Department of Insurance for unfair and deceptive business practices and for failing to file accurate information on the rates it charges its customers.
A consent order issued by state Insurance Commissioner Eleanor Kitzman directed the company to submit to the department a report detailing how it determines its rates and discounts for the 210,000 drivers it insures in Texas.
Among the Loya practices cited by the agency as improper were claims made in radio commercials, billboards, fliers and the Yellow Pages that said auto insurance coverage could be obtained with no down payment and no fees.
“However, Loya only issues policies which require one month or more of premiums to be collected in advance … and Loya charges a policy fee for each policy issued,” the commissioner’s order stated.
The order noted that Loya has revised its advertising practices and no longer makes such claims in its promotions.
Loya also failed to follow the underwriting guidelines for determining discounts and “preferred” customers that it filed with the insurance department, according to the order. The company used additional requirements that made it more difficult for customers to receive lower premiums.
“Loya’s policy files do not clearly demonstrate which criteria were considered or how the ultimate determination was made whether to apply the discounts to a particular applicant or policyholder. Loya’s computer files for each policy issued also did not contain electronic fields to identify which criteria were met to apply the discounts,” the commissioner said.
Loya declined to comment on the order, which said the company consented to the state’s terms “to settle all allegations against it and to avoid the expense and uncertainty of litigation.”
Although the company agreed to revise its business practices, the commissioner’s order said the lack of information about policies makes it impossible to order refunds for customers.
Loya has been near the top of the state’s complaint list for major auto insurers for several years, although in 2011 it dropped to the fifth highest complaint “index” among the 25 largest insurers in the state — those with more than 100,000 policies. In 2011, Loya had a complaint index of 1.58 — or 58 percent higher than the state average.
Some North Texas drivers have lodged complaints with the insurance department contending that Loya refused to pay for damages caused by its policyholders. In one case, the insurer denied a claim by saying that a driver who produced a Loya proof of insurance card after an accident didn’t really have coverage with Loya.
The company with the worst complaint record among the largest auto insurers is Old American County Mutual, which had an index nearly four times the state average.
Complaints lodged by Texas drivers included practices such as delays in processing claims, “lowball” offers and settlements, denial of claims and liability disputes.
For those of you with teenage drivers in your family, here is some information from MADD that will give you concern:
With annual events like proms and graduation parties, and, of course, the starts of summer vacation, teens are more likely to be on the road this time of year; but parents beware, the period between Memorial Day and Labor Day has been labeled "The 100 Deadliest Days" for teen drivers.
According to AAA, an average of 399 teens died in traffic crashes during each of the summer months (May-August), compared to a monthly average of 346 teen deaths during non-summer months. The seven most dangerous days on the road for teens during summer are May 20, May 23, June 10, July 4, July 9, Aug. 8 and Aug. 14.
What can parents do to keep their teens safe?
To keep teens safe during these dangerous months and year round, AAA Insurance suggests the following tips for parents:
Eliminate trips without purpose.
Limit passengers. Fatal crash rates for 16- to 19-year-olds increase fivefold when two or more teen passengers are present versus when teens drive alone.
Restrict night driving. A teen driver’s chances of being involved in a deadly crash doubles at night.
Establish a parent-teen driving agreement. Written agreements help set and enforce clear rules about night driving, passengers, access to the car, and more.
Enroll teens in summer driving school.
Be there. Make sure your teen knows that if they need help, advice or a ride, they can call you at any time. Extend this offer often and let your teen know that you are always available, and that they will not be judged or punished should they need your help.
MADD also suggests:
Talk about alcohol. Use our Power of Parents® handbook to talk with you teens about not drinking alcohol until they are 21 and never get in the car with someone who has been drinking.
Buckle up. Insist on seat belts at all times and in all seating positions. Low seat belt use is one of the primary reasons that teen driver and passenger fatality and injury rates remain high.
The Safe Teen and Novice Driver Uniform Protection Act (STAND UP act)
In the spring of 2011 the STAND UP act was introduced to the U.S. House and Senate. This legislation would establish minimum federal requirements for state Graduated Drivers Licensing (GDL) laws and encourage all states to adopt GDL laws that meet those minimum requirements within 3 years. GDL has consistently proven effective in reducing new driver crash risk. MADD supports the STAND UP act and hopes that all states will adopt Graduated Drivers Licensing laws to help keep our teens safe on the road.
On its front-page, the Detroit News continues coverage about Secretary of Transportation Ray LaHood's distracted driving speech Thursday, when he unveiling a blueprint to "pass more laws, address technology and crack down on texting," a move praised by the Alliance of Automobile Manufacturers. Nevertheless, LaHood stopped short of calling for a ban on hands-fee calling unless research emerges that supports the move. LaHood reiterated his description of distracted driving as an "epidemic" and called on the remaining 11 states to pass legislation to ban texting while driving. He said, "While we've made progress in the past three years by raising awareness about this risky behavior, the simple fact is people are continuing to be killed and injured -- and we can put an end to it." To assist state efforts to curb the practice, USDOT unveiled $2.4 million for pilot projects in California and Delaware that "will examine whether increased police enforcement coupled with news media coverage can significantly reduce distracted driving."
California, Delaware receive $2.4 million for pilot projects. The Los Angeles Times noted California will receive about $1.5 million from USDOT to highlight the dangers of distracted driving through advertisements and increased police enforcement, building on the success of smaller-scale programs in Hartford, CT and Syracuse, NY -- programs that resulted in a 72% drop in texting in Hartford and a 32% drop in Syracuse. "As part of the 'Phone in One Hand, Ticket in the Other' campaign," Secretary LaHood announced that USDOT "would provide $2.4 million to California and Delaware to initiate pilot programs aimed at examining whether increased police enforcement and paid media advertisements can seriously reduce distracted driving." California "will use its federal money to saturate the Sacramento Valley media market with advertisements and pay for extra officers to patrol solely for distracted driving over two-week periods in December, February or March, and June, said Chris Cochran, spokesman for the Office of Traffic Safety."
CDC survey shows teens' widespread calling, texting while driving. The reports on a new survey by the Centers for Disease Control and Prevention on distracted driving which found that "about 58 percent of high school seniors said they had texted or emailed while driving during the previous month," while approximately 43 percent of high school juniors also said they drive while using their phone. The AP discusses the industry's attempts to find a solution to prevent drivers from using their phones while driving and points to the companies that have "slightly more sophisticated solutions: apps that make sure you're in your car before putting the phone in 'driver mode.'"
From the American Association for Justice news release.
I've been writing here since 2006 about the Colossus software program used by most insurance companies to evaluate auto injury claims. The basic effect of the software use has been to tie the hands of insurance adjusters and prevent them from taking into account subjective issues that, in the old days, might have altered the evaluation of the case. A recent article in ComputerWorld, of all places, expresses some concerns about the use of such software in the evaluation of claims. Here are excerpts:
Claims software used by many large auto and homeowners insurance vendors in the U.S. has allowed the companies to manipulate claim payments and "low-ball" customers, according to a new report from the Consumer Federation of America.
Injury evaluation software, including CSC's Colossus package, allows insurance companies to "tune" payment perimeters and reclassify injuries as less serious than the diagnosis from a doctor, said the report, by Mark Romano, a former Colossus expert at Allstate Insurance, and Robert Hunter, a former insurance commissioner for Texas.
The claims software, adopted by many U.S. insurance companies in the past 15 years, "has enabled many insurers to increase profits by reducing the amount paid to consumers who filed bodily injury liability claims," the report said.
Some insurance vendors have touted savings of about 20% after moving to claims software from using human adjusters, the report said.
CSC said Colossus helps insurers assess the severity of injuries, but does not make payments.
"Because the Colossus application helps insurance adjusters bring fairness and consistency to the claims process, we do not believe that consumers should be concerned about the potential for 'low-ball' claims," Ed Charlton, a vice president in CSC's property and casualty insurance division, said in an email. "Payments are negotiated between the insurance company and its claimants."
The software contains a large knowledge base of medical and insurance-adjusting information, he said. The software brings consistency to claims, "while still allowing the claims professional to consider and factor in unique claim attributes before determining the fair value for any individual claim," he added.
More than half of the 20 largest auto and property insurance companies in the U.S. use CSC's Colossus, and many others use similar products from competitors, Hunter said. The claims software market is largely unregulated by state insurance agencies, and "I'm convinced there are millions of Americans still at risk," he said.
CSC originally marketed Colossus as a cost-savings product, but shifted to talking about the software as a way for insurance companies to achieve consistency in claims payouts, the report said. Some insurance companies were uncomfortable with the software marketing as a money-saving package, said the report, referencing CSC materials made public during a class-action lawsuit against the software vendor settled in 2009.
"Consistency, in and of itself, is a legitimate goal," Romano said. "However, insurers aren't investing millions of dollars in this software just to achieve consistency. They're looking to save millions more by underpaying injury claims."
Insurance companies can tweak Colossus and similar software packages in several ways to lower claims payouts, the report said. Insurance companies can use the software to reduce payments by a predetermined percentage, and they can exclude high-cost claims from original tuning results used to determine the costs of injuries, the report said.
Insurers can also use the software to downgrade, en masse, the diagnosis of certain injuries, or pair the claims software with medical repricing software that reduces the "usual and customary" medical costs to be reimbursed, the report said.
The Consumer Federation of America called on state insurance commissioners to investigate claims software vendors and insurers for unfair business practices or unfair claims settlements.
There has been a continuing problem with the way car-rental agencies deal with vehicles that have been recalled for safety defects.You would think the agencies would take the vehicles in for repair automatically, but of course that would take the cars out of service for some period of time and would cost the agencies money in lost rental revenue. So what frequently happens is that the rental agencies simply keep the cars in service until it's time to sell them to the public. and even then the vehicles are not taken in for repair. The problem is passed on to the purchaser, either with or without notice.
The same problem exits with private owners of vehicles. Sometimes the owners get their cars repaired, but sometimes they just sell them without repairs or notice of the recall announcement.
A recent article in the Dayton Daily News detailed this continuing problem. Here are excerpts:
More than 80,000 used vehicles in Ohio that were advertised for sale online last year had open recalls, which can pose safety risks to both auto buyers and motorists with whom they share the road, according to a recent study.
Repairing recalled parts is essential to the performance, safety and resale value of used vehicles. But about 2.7 million used vehicles across the country that were placed for sale on the Internet in 2011 had open recalls, according to a study by Carfax, a Virginia-based company that provides vehicle-history data.
Many sellers do not divulge that their vehicles require repairs, and many buyers do not know their purchases have defects. Auto experts said consumers should do their homework whenever they buy a used vehicle to determine whether it needs repairs at a dealer.
“People need to realize these are safety issues,” said Chris Basso, public relations manager with Carfax. “By not getting them fixed, you are putting your family and other people who you are on the road with at-risk.”
In Ohio last year, about 83,000 cars with open recalls were available for sale online, according to Carfax; that was up from 50,000 cars in 2009.
Vehicles sold online represent only a portion of all used vehicles on the market.
The online listings are “just the tip of the iceberg,” he said.
Basso said many used car dealers and individual sellers do not disclose the fact that their vehicles have defects.
Auto sellers have no legal obligation to divulge unfixed recall issues, and it is not against the law to sell vehicles with defects, Basso said.
But auto manufacturers go to considerable lengths to tell car owners of recalls, he said, because defective parts can cause vehicles to malfunction or they can lead to costly damage.
Auto makers fix recall problems for free, so there are no reasons — financial or otherwise — for ignoring the warnings, Basso said.
After buying used vehicles, consumers should contact the closest local dealer that sells their brand of car or truck to determine if there are any recall issues they need to resolve, said Jim Mitchell, executive director of the Ohio Independent Auto Dealer’s Association.
“Just give them the (vehicle identification number) to see if there are any open recalls,” Mitchell said. “If there are, get them fixed, because it is to their benefit and safety to do so.”
Owners can research recalls online at websites such as carfax.com and the National Highway Traffic Safety Administration’s site, nhtsa.gov.