| Edited
by Kenneth A. Vercammen, Esq.
No one plans on being injured in an accident, whether it is a fall
down or other situation. Speak with a personal injury attorney immediately
to retain all your rights. The businesses are responsible for the
maintenance of their premises. It is the duty of the site manager
to inspect and keep the construction site in a safe condition and
free from any and all pitfalls, obstacles or traps that would likely
cause injury to workers and persons lawfully thereon.
When the Workers' Compensation Act was passed many years ago it
was probably the first true "no fault" law in this State.
With some very narrow exceptions, the question of negligence (fault)
is not an issue if a worker is hurt on the job. Whether or not the
employer is at fault has no impact on the worth of a case. In worker's
comp, employees can bring a claim against their employers' worker'
comp carrier. However, employees cannot file a formal lawsuit against
their employer. Financial recovery is limited by state law in worker's
comp cases. If their injury at the construction site was caused
by negligence of someone who is not your employer or another employee,
a civil lawsuit in Superior Court. In lawsuits, negligence must
be proved against someone other than the employer.
It is the duty of the owner to properly and adequately inspect,
maintain and keep the premises free from danger to life, limb and
property of persons lawfully and rightfully using same and to warn
of any such dangers or hazards thereon. You may be lawfully upon
the premises as an employee or business invitee in the exercise
of due care on your part. If severely injured, and the negligence
was of someone other than your employer, you can retain an attorney
to file a lawsuit for damages, together with costs of suit. Injured
people in lawsuits can demand trial by jury. Jury trials are not
permitted in worker's compensation cases. The Appellate Division
court in RAIMO v. FISCHERA __ NJ Super. __ docket 2201-03T5A held
contractor's duty of care for persons who come onto a construction
site is governed by general negligence principles, which require
a contractor to exercise reasonable care to maintain the site in
a safe condition for any persons who the contractor may reasonably
expect to come onto the site, rather than by the common law doctrine
of premises liability, under which the landowner's tort liability
is determined by the injured person's classification as a business
invitee, licensee, or trespasser.
WHAT TO TRY TO DO AT THE ACCIDENT SCENE IF INJURED
1. Stop . . . do not leave the scene of the accident. CALL 911,
tell them where the accident occurred and (ask for medical help
if needed). 2. Notify the property manager or owner, if possible.
Insist they observe where you were injured. 3. Get names and addresses
of all witnesses. Witnesses will be a tremendous help to you in
any subsequent court action if there is any question of liability
involved. Get the names and addresses of as many witnesses as possible.
If they refuse to identify themselves, jot down identifying features
or the license plate numbers of their automobiles. Do not discuss
the accident with the witnesses. Do not give the witnesses' names
to anyone but the police, your attorney or your insurance company.
4. While waiting for ambulance, write down- Accident Information
Date __ Time __ Location __ Weather __ area conditions __
5. Summary of accident __
6. Diagram of accident location
7. Seek medical care. If you have any reason to suspect you were
injured in the accident, go to a hospital immediately or see a physician
promptly. You'll want it on record that you sought treatment right
away, not in a week or so.
8. Write down name of Security Personnel, Police Officers, Department
and Badge Number, Ambulance crew, etc.
9. Do not assign or accept blame for the accident. - The scene
of the accident is not the place to determine fault. Discuss the
accident only with the ambulance and medical personnel, your attorney
and with representatives of your insurance company. Give the other
party only your name and address. - Be cooperative with the police.
10. Have immediate photos taken of accident site.
11. Call a personal injury attorney immediately, not a real estate
attorney. Call Kenneth A. Vercammen- Trial Attorney Attorney At
Law (732) 572-0500 When you need help the most, we will be ready
to help you.
12. Never give a signed statement to the claims adjuster representing
the property owner's insurance company. The same goes for a phone
recording. They may be used against you in court to deny your claim.
Speak with your personal injury attorney first.
IF YOU HAVE BEEN INJURED IN A CONSTRUCTION SITE
It is important that you -- 1. DO NOT discuss your case with anyone
except your doctors and attorney. 2. DO NOT make any statements
or give out any information. 3. DO NOT sign any statements, reports,
forms or papers of any kinds, . 4. DO NOT appear at police or other
hearings without first consulting with your attorney. INFORM YOUR
ATTORNEY PROMPTLY of any notice, request or summons to appear at
any hearings. 5. Refer to your attorney anyone who asks you to sign
anything or to make any statement or report or who seeks information
concerning your case. 6. Direct your doctor and other treatment
providers not to furnish or disclose any information concerning
your case to any entity other than your insurance company without
YOU AND YOUR ATTORNEY'S WRITTEN PERMISSION. 7. You may have insurance
coverages such as Worker's Comp, Blue Cross, Blue Shield or Major
Medical which require prompt attention. However, be sure to have
your treatment providers send bills immediately to all of your insurance
companies. 8. Notify your attorney promptly of any new developments.
Small things may be important. Keep your attorney informed. 9. Maintain
accurate records of all information and data pertaining to your
case. 10. If you or any witnesses should move, be sure to notify
your attorney of the new address.
Financial Recovery if injured due to negligence of someone other
than the employer
1. Kenneth Vercammen, Esq. Helps Injured persons A person who is
injured as a result of the negligence of another person is what
we in the legal profession refer to as a personal injury claimant.
In other words, they have been injured as a result of an accident,
and now wish to prosecute a claim against a negligent property owner
and its insurance company. As the attorney of record, we will be
bringing this action for the injured person. Therefore, I request
that all clients do as much as possible to cooperate and help in
every way. The purpose of this article is to describe the procedure
that we may follow and give you sufficient instructions to enable
you to assist us in this undertaking. Needless to say, helping us
is just another way of helping yourself. Details on workers' compensation
cases are at the end of this article.
1. Clients should provide my office with the following 1. Any bills
2. All Hospital or doctor records in your possession 3. Photos of
scars, cuts, bruises 4. Photos of damage to your clothes and property
5. Photos of accident site 6. Major Med Card 7. Paystub if lost
time from work
2. Attorney- Client Confidential Relationship First, I want to
thank our clients for giving me the opportunity to assist them in
their case. I am a legal professional and I have great pride and
confidence in the legal services that I perform for clients during
our relationship as attorney-client. If you have concerns about
your case, please call my office. (732) 572-0500 We feel that this
case is extremely important not only to you, but to this office
as well. This is not simply a matter of obtaining just compensation
for you, although that is very important; we take professional pride
in guiding our clients carefully through difficult times to a satisfactory
conclusion of their cases.
3. Diary We want you to keep a diary of your experiences since
your accident. In addition to this daily record, we also ask you
to start describing a single day in the course of your life. In
other words, describe what you do when you get up in the morning,
the first thing you do after you go to work, what type of work and
effort you put into your employment, what activities you engage
in after work, etc. In other words, we need you to describe the
changes in your working life, your playing life, your life as a
husband or wife or child or parent. In your written description
of your day, we would appreciate your explanation in the greatest
detail possible and in your own words how the accident and subsequent
injuries have affected your life, your personality, and your outlook.
Remember that suffering does not entail mere physical pain; suffering
can be emotional and can be transmitted to your family, friends,
and co-workers. Keep a diary of all matters concerning this accident-no
matter how trivial you think it may be. You should include notes
on the treatments you receive, therapy, casts, appliances, hospitalization,
change of doctors, change of medication, symptoms, recurrence, setbacks,
disabilities and inconveniences. If you have any doubt about the
propriety of including some particular information, please call
the office and let us assist you.
4. Record expenses You can also begin to set up a system for recording
the expenses incurred in conjunction with your claim in minute detail.
Medical and legal expenses are a strong part of the value of your
lawsuit, so good records of these expenses must be kept at all times.
From time to time, however, there will be expenses incurred that
you must keep track of yourself. We ask you to make every effort
to avoid any possible error or inaccuracy as jurors have a relentless
reverence for the truth. Keep your canceled checks and your list
of expenses together, for we will need them at a later date. Your
attorney will keep track of your legal expenses, which may include
costs of filing, service of complaint, investigation, reports, depositions,
witness fees, hospital/ medical records, etc.
5. Investigation and Filing of Civil Complaint Procedurally, the
following events occur in most personal injury cases. First, your
attorney must complete the investigation. This will involve the
collection of information from your physician, your employer, and
our investigator. We will need your doctors to provide us with copies
of all bills, medical records and possibly a medical report. When
we feel that we have sufficient information to form an opinion as
to the financial extent of your damages, we will commence negotiations
with the opposition for a settlement. If the insurance company will
not make an adequate offer, then a Complaint and Case Information
Statement is prepared by your attorney. It is filed in the Superior
Court, Law Division. Your attorney then will prepare a summons and
have the defendants personally served with the Summons and Complaint.
The defendant, through their insurance company, must file an "Answer"
within 35 days. Kenneth Vercammen's office generally does not file
a Complaint until the treating doctor signs an affidavit of merit
setting forth why the injury is permanent and the diagnostic tests
upon which the permanent injury is based. You will need to speak
with your doctor to ask if you have a permanent injury.
6. Interrogatory Questions and Discovery The Answer is followed
by a request for written interrogatories. These are questions that
must be answered by each party. The Superior Court has set up certain
"Form A" Interrogatory Questions which are contained in
the Rules of Court. Generally, written interrogatories are followed
by the taking of depositions, which is recorded testimony given
under oath by any person the opposition wishes to question. The
deposition is just as important as the trial itself. In the event
you are deposed during the course of this action, you will receive
detailed instructions as to the procedure and will be required to
watch a videotape. After taking depositions, the case will be set
down for an Arbitration. If the parties do not settle after the
Arbitration, the case will be given a trial call date. Altogether,
these procedures may take from six months to several years, and
your patience may be sorely tried during this time. However, it
has been our experience that clients who are forewarned have a much
higher tolerance level for the slowly turning wheels of justice.
7. Doctor/ Treatment It will help your case to tell us and your
doctors about any injury or medical problems before or after your
accident. Good cases can be lost by the injured person concealing
or forgetting an earlier or later injury or medical problem. Insurance
companies keep a record of any and all claims against any insurance
company. The insurance company is sure to find out if you have ever
made a previous claim. Tell your doctors all of your complaints.
The doctor's records can only be as complete as what you have given.
Keep track of all prescriptions and medicines taken and the bills.
Also save all bottles or containers of medicine.
8. Bills Retain all bills which relate to your damages, including
medical expenses, hospital expenses, drugs and medicines, therapy,
appliances, and anything needed to assist in your recovery. If possible,
pay these bills by check or money order, so that a complete record
may be kept. If this is not possible, be certain to obtain a complete
receipt with the bill heading on it, to indicate where the receipt
came from and the party issuing it.
9. Evidence Be certain to keep anything that comes into your possession
which might be used as evidence in your case, such as shoes, clothing,
glasses, photographs, defective machinery, defective parts, foreign
substances which may have been a factor in your accident, etc. Be
sure to let the office know that you have these items in your possession.
10. Photographs Take photographs of all motor vehicles, accident
site, etc., that may be connected--directly or indirectly--with
your accident. Again, be sure to let the office know that you have
such photographs.
11 Keep your attorney advised Keep this office advised at all times
with respect to changes in address, important changes in medical
treatment, termination of treatment, termination of employment,
resumption of employment, or any other unusual change in your life.
12. Lost wages Keep a complete record of all lost wages. Obtain
a statement from your company outlining the time you have lost,
the rate of salary you are paid, the hours you work per week, your
average weekly salary, and any losses suffered as a result of this
accident. Where possible, also obtain other types of evidence such
as ledger sheets, copies of time cards, canceled checks, check stubs,
vouchers, pay slips, etc.
13. New information In the event that any new information concerning
the evidence in this case comes to your attention, report this to
the attorney immediately. This is particularly true in the case
of witnesses who have heretofore been unavailable.
14 Do not discuss the case The insurance company may telephone
you and record the conversation or send an adjuster (investigator)
who may carry a concealed tape recorder. You should not discuss
your case with anyone.
Obviously, we cannot stress too strongly that you DO NOT discuss
this matter with anyone but your attorney or immediate, trusted
family. You should sign no documents without the consent of this
office. Remember that at all times you may be photographed and investigated
by the opposition. If you follow the simple precautions which we
have set out in your checklist, we feel that we will be able to
obtain a fair and appropriate amount for your injuries. If you get
any letters from anyone in connection with your case, mail or fax
them to your attorney immediately.
15. Questioning If any person approaches you with respect to this
accident without your attorney's permission, make complete notes
regarding the incident. These notes should include the name and
address of the party, a description of the person, and a narrative
description of what was said or done. Under no circumstances should
you answer any question(s). All questions should be referred to
your attorney's office.
16. Investigation by Defendant Insurance Company Permit us to reiterate
at this time that the opposition's insurance company will in all
probability have a team of lawyers and investigators working diligently
to counter your claim. During the course of their investigation,
it is quite possible that they may attempt to contact you through
various (and sometimes, devious) methods. Please do not make their
jobs any easier for them by answering their questions.
We cannot emphasize too strongly that you should refrain at all
times from discussing this matter with anyone--and that includes
your employer, your relatives, your neighbors, and even your friends.
Of course, there are exceptions to this rule.
If there are friends or neighbors or relatives who know all of
the facts and circumstances surrounding the accident and can be
of assistance to you, then they should be referred to this office
so that their natural sympathy can be channeled into an effective
asset for you.
Insurance companies pay money to claimants when they are satisfied
there are both liability and damages that support a recovery. They
can be expected to thoroughly investigate the facts of the accident
and any past injuries or claims. The insurance company will obtain
copies of all of the claimant's past medical records.
The value of a case depends on the Permanent Injury, medical treatment
and doctor's reports Undoubtedly, you have questions as to how much
your case is worth. We are going to be frank: The fact of the matter
is there can be no answer to this question until we have completed
the investigation in your case. Once we complete our investigation,
of course, we can make a determination as to the amount of the defendant's
liability, if any, and even at that we will only be at a starting
point. After that, we must obtain all necessary information concerning
your lost wages, your disability, your partial disability, your
life changes, and your prognosis. You may rest assured of one thing,
however, and that is the fact that your case will not be settled
below its true value, that is the fair compensation for the injuries
you have received. You may also rest assured that no settlement
agreement will be entered into without your consent.
DUTY TO INSPECT OWED TO INVITEE The duty of an owner (or occupier)
of land (or premises) to make the place reasonably safe for the
proper use of an invitee requires the owner or occupier to make
reasonable inspection of the land (or premises) to discover hazardous
conditions. Cases:
Handelman v. Cox, 39 N.J. 95, 111 (1963) (salesman showing merchandise
to employees of defendant fell down cellar stairway partially obscured
by carton) NOTICE OF PARTICULAR DANGER AS CONDITION OF LIABILITY
If the land (or premises) was not in a reasonably safe condition,
then, in order to recover, plaintiff must show either that the owner
(or occupier) knew of the unsafe condition for a period of time
prior to plaintiff's injury sufficient to permit him/her in the
exercise of reasonable care to have corrected it, or that the condition
had existed for a sufficient length of time prior to plaintiff's
injury that in the exercise of reasonable care the owner (or occupier)
should have discovered its existence and corrected it. Cases:
Tua v. Modern Homes, Inc., 64 N.J. Super. 211 (App. Div. 1960),
affirmed, 33 N.J. 476 (1960) (slip and fall on small area of slipper
waxlike substance in store); Parmenter v. Jarvis Drug Store, Inc.,
48 N.J. Super. 507, 510 (App. Div. 1957) (slip and fall on wet linoleum
near entrance of store on rainy day); Ratering v. Mele, 11 N.J.
Super. 211, 213 (App. Div. 1951) (slip and fall on littered stairway
at entrance to restaurant).
Notes:
(1) The above charge is applicable to those cases where the defendant
is not at fault for the creation of the hazard of where the hazard
is not to be reasonably anticipated as an incident of defendant's
mode of operation. See: Maugeri v. Great Atlantic & Pacific
Tea Company, 357 F.2d 202 (3rd Cir. 1966) (dictum).
(2) An employee's knowledge of the danger is imputed to his/her
employer, the owner of premises. Handelman v. Cox, 39 N.J. 95, 104
(1963).
Worker's compensation recovery if no negligence by others, but
on the job injury Original draft by Julius J. Feinson, Esq. Modified
by Kenneth Vercammen, Esq. If a worker is injured on the job, the
worker has three basic rights: (1) the right to medical treatment;
(2) the right to receive payment (temporary disability) for lost
time; and (3) the right to receive payment for any after-effects
of the injury if the after-effects are found to be permanent (partial
permanent disability). If you are injured, you should immediately
report the accident. Make sure an accident report is filled out
and write down the names of all witnesses. When a worker is injured
on the job, the employer or the employer's insurance company are
obligated to furnish and pay for medical treatment. However, in
New Jersey, the employer has the right to select the doctors who
will provide that treatment, since it's the employer or its insurance
company who is responsible for payment of medical expenses. It follows
that if the worker does not go to the authorized treating doctor,
then the employer will generally not be responsible for payment
of the medical expenses. When an employee is hurt on the job, the
employee is entitled to receive temporary disability benefits of
70% of wages up to an amount set by the State. For example, the
maximum amount for an injury in 1997 was only $496 per week. These
benefits are payable on a retroactive basis if the employee is out
at least seven (7) days and the treating doctor certifies that the
employee cannot work. In general, temporary disability benefits
will continue to be paid so long as the workers' treating doctor
certifies that the employee cannot work. When medical treatment
is completed and the employee is able to return to work, there may
be a basis for payment to the employee of benefits for the after-effects
of the injury. This is called partial permanent disability and is
based on a schedule which utilizes a system of assigning value to
each part of the body on a scale of 1% to 100%. Generally, the issue
of partial permanent disability is resolved by filing a claim in
the Division of Workers' Compensation. A lawyer who represents a
claimant before the Division of Workers' Compensation may not charge
any fee in advance. An Administrative Law Judge who hears the case
will set the fee (never more than 20%) and if there is no recovery,
an attorney will not be allowed a fee. Finally, disposition of a
claim in the Division of Workers' Compensation will not always operate
to end a claim. There are rights and obligations on the part of
both the employer and the employee. Since an employee is not obligated
to pay a fee in a workers' compensation case unless awarded by the
Court, it would make sense for the employee to immediately consult
an attorney to protect his/her rights. The employee should also
be aware of the fact that there are time limits regarding the reporting
of accidents. The safest approach is, of course, to report a work
related accident immediately, even if it seems relatively minor
at the time. Failure to report an accident can cause delays in receiving
temporary disability and other benefits. When you meet with a worker's
compensation attorney, the following information will be requested
from you: 1. Name, address and telephone number. 2. Name, address
and telephone number of employer. 3. Name, address and telephone
number of any union the client is a member of, along with full details
of any union benefits that may have been received or to which the
client has a right. (There may be a union benefit plan which provides
the employee with payments for drugs and medical bills in addition
to workers' compensation benefits.) 4. The job title the client
held when injured, along with the client's educational background
and previous employment history. 5. The nature of the employer's
business. 6. Your Social Security number. 7. Your sex, age, and
marital status at the time of the accident. 8. The name of the employer's
worker's compensation insurance carrier or indication of whether
the employer is self-insured. 9. The exact details of how you gave
notice of the accident to the employer or whether the facts and
circumstances are such that the employer must have had knowledge.
10. The exact place where the accident occurred and the date and
time of the occurrence. 11. A full description in your own handwriting
of how the accident occurred or to the exposures if an occupational
disease case. 12. Your wages or earnings and whether on time or
piece-work basis, the rate per hour, or the weekly wage. 13. The
date when you stopped work and the date of return to work. 14. A
statement of past and present complaints, as well as a description
of all body parts affected by the accident. Explain any emotional
complaints since the accident to investigate the question of neuro-psychiatric
disability. 15. The compensation paid for temporary or permanent
disability must be ascertained. 16. Full details as to medical aid
required and whether it was requested from the employer. If the
medical treatment was furnished by the employer, all dates of treatment
should be inventoried. If the employer refused to furnish the treatment,
indicate in detail all requests made to the employer for treatment,
as well as obtaining the names and addresses of all doctors who
furnished the treatment. 17. Be certain you have the names and addresses
of all physicians and hospitals who rendered medical treatment since
the accident, including but not limited to the injuries arising
from the accident. Attempt to obtain the amount of all physician's
bills and prepare a file for paid and unpaid bills. If you are receiving
medical treatment from a doctor of your choice or if the employer
has refused to render medical treatment, the attorney must give
written notification to the employer and its insurance carrier of
all the details concerning your injuries and accident and the name
and address of the doctor by whom he is being treated or the name
and address of the doctor who is going to be treating him. The attorney
must clearly indicate in the letter that this is a formal request
pursuant to Title 34 for the employer/respondent to furnish medical
treatment by the doctor chosen by the petitioner or, alternatively,
that the respondent should immediately provide the name and address
of a doctor that it wants to treat the petitioner. In Worker's Compensation,
the respondent controls the choice of doctor. 18. Any Blue Cross,
Blue Shield, or major medical plans which cover you, as well as
identification numbers, since it may be possible to obtain payment
for medical bills from these plans, if the employer/worker's compensation
refuses to make payment. See Workers' Compensation (ICLE 1983).
If you are injured while working, we recommend you immediately speak
with an experienced attorney.
Conclusion We appreciate that this is a great deal of information
to absorb. However, we are certain that our clients appreciate having
this information from the outset. Each request and bit of information
given here represents an important part in recovering full value
for your injury. Therefore, we respectfully request your full cooperation.
If you have questions or concerns regarding these instructions,
we encourage you to feel free to contact the office at any time.
Call Kenneth Vercammen to schedule an appointment 732-572-0500
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