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Frequently Asked Questions

Trucking Accidents


Auto Accidents


Motorcycle Accidents


Aviation Accidents


Boating / Personal Watercraft Accidents


Medical Malpractice


Defective Products


Premises Liability/Slip and Fall


Workers Compensation


Railroad Injuries/FELA


Insurance


Anti-Trust Laws


Trucking Accidents

Who Is At Fault?

Why are truck accidents so complicated?  Liability can be clouded in a trucking accident.  The truck's driver, the driver's employer, the truck's manufacturer, and even the manufacturers of truck brakes, tires, and headlights can be involved.  And there is more.  Weather conditions, drug or alcohol use, driver fatigue, and time of day can all influence who is to blame for a truck accident.
Trucker fatigue is a huge contributing factor in truck accidents, and Tennessee truck accidents are no exception.  Studies have found that accidents caused due to trucker fatigue cost over $2 billion per year, yet legislative battles have failed to reduce the number of allowable trucker driving hours each day.  This doubtless contributes to the high number of truck accidents each year.

Tennessee Insurance and Licensing Regulations

Regardless of who is at fault in a truck accident, Tennessee truck drivers are bound by federal and state regulations.  The U.S. Department of Transportation (DOT) and the Federal Motor Carrier Safety Administration (FMCSA) both oversee trucking and interstate commerce on the national level, while Tennessee laws also apply. Federal rules require truck drivers to carry at least $750,000 in liability insurance.  This number may be increased depending on a truck's cargo and other factors.

If You Are in a Trucking Accident

Truck drivers are not the only ones at risk in trucking accidents.  Drivers of vehicles that crash into or collide with trucks seldom get away from a truck accident without serious injuries. If you have been injured in a trucking accident in Tennessee, collect as much information as possible and contact a lawyer experienced with Tennessee's truck accident laws. Your lawyer can help you determine where to file a claim and what kind of damages to seek.  An experienced attorney can help you get compensation for your injuries and expenses such as future medical care..

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Auto Accidents

What should I do if I have a car accident in Tennessee or elsewhere?

Keep calm.  Call or have someone call the police. Be polite and courteous to any police or emergency personnel. The parties involved should only get  the other party's name, address, license number, plate number, insurer, date, and time of accident, and the names and addresses of witnesses.
Call the police if you collide with a parked or unattended vehicle, a tree, or other property and cause significant damage.  You will need a police-filed accident report to make an insurance claim.  If the damage is small, try to locate the property owner and report the accident.  If the owner of the damaged property can't be found, leave a note with your name, address, and phone number.  You can leave this information on a damaged car or at a house where the damage occurred.  If you have questions, contact our auto accident lawyers in Tennessee.  We can help.

What not to do if after  a car accident in Tennessee?

Don't say, "I'm not hurt." It could be several days before you realize the extent of your injuries.  A better response would be: "I'll let them check me at the hospital, but I am not in any pain at this moment."

Don't  say, "I should have seen him", or "I wasn't looking."  We are all embarrassed by being in an accident and  tend to deny injury and accept responsibility.  Our auto accident attorneys in Tennessee can help you through these situations.

What should I do after I have left the scene of the car accident?

Whether your car accident occurred in  Tennessee, or in another state, you should immediately report the incident, however slight, to your insurance company.  Your insurance company should be notified before you authorize repairs to your car.

Do not sign anything that says "Release," or "in full satisfaction of all claims." This language is sometimes printed on checks even when only partial payment is being made.

Take pictures of the damage to your car, particularly if it was towed and is now in a storage lot.  Have someone take pictures of your injuries.  This could be important evidence in the future.

Your memory of what happened  may fade by the time you settle your case.  It is a good idea to record when the accident occurred and keep a log of dates and incidents pertaining to your accident.  For more tips like these, contact one of our helpful auto accident lawyers in our Tennessee offices.

What if the other driver is at fault and has no insurance?

If you have uninsured motorist coverage, your own insurance company will step in and pay as if they were the guilty driver's insurance company.  If your case is filed in court, your insurance company will hire an auto accident lawyer to defend the other driver and will pay any amounts the court orders the guilty driver to pay.  Naturally, the insurance company only has to pay amounts up to the policy limits you purchased.  More questions?  Contact our knowledgeable auto accident lawyers in Tennessee.

Will my policy pay for a rental car if my car is damaged?

This varies from policy to policy, but typically, auto rental is paid for the period between the car accident and repair or until such time as the vehicle is appraised as a total loss.  Insurance adjusters will typically offer to pay only the least expensive rates available for rental.  Our auto accident attorneys in Tennessee can answer more of your questions.

If my car is totaled, will insurance pay off my car note?

Not necessarily.  Your recovery will be for the actual cash value of the car, not the amount owed.  The term actual cash value refers to what it would cost to replace your damaged vehicle with one similar in condition and mileage.  Conditions such as un-repaired previous damage and tire wear are all considered in determining actual cash value.  If your car has been financed, the actual cash value may be much less than the money owed.  Our car accident lawyers in Tennessee can find out more information like this for you.

What is the meaning of "subrogation" when applied to my automobile insurance?

When your insurance company pays you for a loss caused by another driver, the company may recover the full amount of their payments made from that other party.  This also means if your insurance company pays you, you will have to cooperate with them as they sue the other party.  You must repay your insurance company any amounts they have paid you if your claim against someone else is successful.  There are some situations where the subrogation interests at an insurance carrier can be waived or defeated altogether.  These are complex issues that require the advice of one of our auto accident attorneys in Tennessee.

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Motorcycle Accidents

What are Tennessee Motorcycle Helmet Laws?

Tennessee helmet laws require anyone operating or riding on a motorcycle to wear a helmet.  Though this law has been hotly contested within the state, helmets save lives, reducing fatal head injury risks by over 40 percent.  In fact, Tennessee's Vanderbilt University, which treats a large number of head injuries after motorcycle accidents, estimates that these injuries cost nearly $70,000 on average—not counting permanent disability and its effects on productivity.

In Tennessee this issue is of great concern because TennCare, the state's insurance program, bears many of the costs for motorcyclists hurt while riding without a helmet.

What are Tennessee Licensing and Insurance Requirements?

In addition to helmet laws, Tennessee requires motorcycle drivers to carry motorcycle insurance.  The state requires $50,000 in coverage for property damage and at least $25,000 in coverage for bodily injury.  A ten percent insurance discount can be applied for three years after a driver completes Tennessee's motorcycle safety program, a rider education program designed to reduce motorcycle accidents in Tennessee.  In addition, those who seek licensure in Tennessee get their fees waived if they have completed the safety course.

Who is at fault?

Despite incentives to ride safely, Tennessee motorcycle accidents can and do occur.   It is essential to identify liability in a Tennessee motorcycle accident since Tennessee is an at-fault state.  This means the party determined to have caused the accident takes on responsibility for all damages.  However, fault can rest on various factors: time of day, road conditions and weather, driver intoxication, and traffic conditions.

If you are in an accident

Make sure never to admit fault at the scene of an accident.  Unfortunately, insurance companies as a rule do not want to pay out damages and it can be frustrating to deal with them and an accident's aftermath first-hand.  For this reason, it is a good idea to retain an experienced Tennessee motorcycle accident attorney to help litigate your accident and seek monetary compensation for your injuries and for property damage.
Our Tennessee motorcycle accident lawyers can help assess and file your claim within the applicable statute of limitations and can negotiate with insurance companies to make sure you get the money you deserve to help deal with damaged property and injuries.  Having a competent attorney can greatly reduce the stress and hassle of dealing with a motorcycle claim.

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Aviation Accidents

Who is legally liable for damages in a general aviation accident? 

Potentially liable parties vary depending on the cause of the accident.  The owner and operator of the aircraft certainly may be liable.  Manufacturers or maintenance suppliers may be liable in certain circumstances.  In one recent case, a company that leased a plane to an inexperienced pilot was found to be liable.  An experienced aviation attorney is essential in identifying all possible claims and defendants. 

What is the NTSB? 

The National Transportation Safety Board ("NTSB") is an independent federal agency charged with investigating every civil aviation accident in the United States.  Its jurisdiction also includes trains and other vehicle accidents as well.  The NTSB also issues safety recommendations aimed at preventing future accidents.  The NTSB maintains the government's database on civil aviation accidents and conducts special studies of transportation safety issues of national significance.  The NTSB also provides investigators to serve as U.S. representatives in aviation accidents overseas involving U.S. - registered aircraft, aircraft or major components of U.S. manufacturers or where requested by foreign governments. 

What is the FAA? 

The Federal Aviation Administration ("FAA") is the element of the U.S. government with primary responsibility for the safety of civil aviation.  It is separate from, and independent of, the NTSB. 

What role does the FBI play in the investigation of an aviation accident? 

The FBI's role is to investigate the possibility of sabotage or some other criminal act that may have contributed to an accident.  Though the FBI is consulted in many aviation disasters, they take over jurisdiction only in rare cases where criminal acts form the reason for the accident. 

What agencies are involved in the investigation of aviation accidents? 

In addition to the NTSB, FAA, and FBI, accident investigation may involve foreign or local authorities or the Departments of Justice, State and/or Defense.  Agencies such as the American Red Cross, Department of Health and Human Services, and Federal Emergency Management Agency may also be involved in providing services to victims and their families.  Depending on the circumstances of any given crash, other agencies may also be involved. 

What insurance is the owner of a general aviation aircraft required to have? 

The typical liability insurance policy will provide $100,000 of coverage per passenger/injury. 

What is a "statute of repose?"

In the context of aviation litigation, a "Statute of Repose" limits the time a lawsuit may be filed with regard to how long an airplane or part has been in service.  The applicable time period varies depending on the jurisdiction. 

What is a "black box?"

The term "Black Box" actually refers to two "black boxes" - the flight data and cockpit voice recorders.  These instruments record a wide variety of information, such as speed and altitude or the voice communication within the cockpit.  The black boxes are also equipped with beacons that aid rescuers in locating them. 

Can the government be held responsible for an aviation accident? 

Under the Federal Tort Claims Act, the United States has been sued for the negligence of an air traffic controller that led to an aviation disaster. 

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Boating / Personal Watercraft Accidents

What authority does the state Marine Patrol officer or the United States Coast Guard officer have at the accident scene?

The state Marine Patrol officers, or similar state agency officers, are law enforcement officers of that state and have all necessary police powers that would be available to other law enforcement officers such as the state highway patrols.  The United States Coast Guard has jurisdiction over all American vessels within state waters and anywhere in the world.

What law, state or federal, governs recreational boats?

It is important to remember that the federal general maritime law supersedes all state laws concerning vessels of any type.  However, the states may enact additional laws which do not conflict with the federal legislation.  For example, states are allowed to regulate yacht brokers and sales persons, data systems for the registration, numbering and titling of vessels, establish collision reporting in addition to that required by United States statutes, and states may establish criminal penalties for reckless and careless operation of boats including punishment for boating under the influence of alcohol or other substances.

A chief limitation on the state's rights to regulate boating within its territorial waters depends on whether or not there is a conflict with any federal law.  In the event that there is a conflict, federal law applies.

What should I do if I am involved in a boating accident?

Most boating accidents require a report to either the state agency regulating boats or to the United States Coast Guard or both.  If an operator is involved in a collision with another boat or an "allision" (which means striking a fixed object or a non-moving vessel), he or she should immediately contact the state agency regulating boats to ascertain what type of report is required, if any.  A reporting requirement is generally triggered if the boating accident involves personal injury requiring medical treatment beyond immediate first aid or damage to any vessel or other property above a certain specified amount, frequently $500.  Failure to remain on the scene, render aid, and timely report the boating accident to an appropriate law enforcement agency is a crime.  Report the incident to your insurance company to be safe and always if a state or federal report was made.

What should I do if I am asked by a marine patrol officer or the Coast Guard to give a statement regarding my boating accident?

Try not to make any statement without your attorneys counsel and advice because this communication may be very important later on in your claim.  Give only the basic information regarding the accident.  If you admit some fault for the accident in the report, or omit an injury, these may end up haunting you later.

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Medical Malpractice

What is medical malpractice in Tennessee?

Medical malpractice is the failure of a health care provider to act in accordance with acceptable professional practice, which causes a patient an injury.  Medical malpractice is another name for medical negligence.  Click here to read a review of recent decisions affecting medical malpractice lawyers (from The Tennessee Trial Lawyer) by Richard L. Duncan.

Who can commit medical malpractice?

Any type of health care provider can commit medical malpractice.  The medical malpractice lawyers from our offices Tennessee are experienced in negligence cases including hospitals, nursing homes, emergency clinics, walk-in clinics, doctors, nurses, nurse's aides, physical therapists, pharmacists, psychologists, chiropractors, and podiatrists.

A Bad Result is not enough To Have a Medical Malpractice Case.

Under state law, you must prove the following with enough evidence to win a medical malpractice lawsuit in Tennessee:

First, what is the standard of care in the profession and specialty of the defendant (the person or entity sued) in the community or in a similar community?

Then prove,

  1. That the defendant failed to comply with that standard ("breach" of the standard of care).
  2. That the plaintiff was injured as a proximate result (legal result) of the breach of the standard ("proximate cause" and "injury"), which injury would not have otherwise occurred.  The negligence must be "a" proximate cause of injury; but it does not have to be the "only" cause.  All of the above need only be proved to a 51 percent likelihood.

Because of the complexity of medical malpractice cases in Tennessee and elsewhere, we recommend contacting one of our knowledgeable medical malpractice lawyers in Tennessee for a free consultation.

How do you prove the standard of care?

Standard of care must usually, be proved by a witness in a relevant profession or specialty, who has practiced in Tennessee or a contiguous state within the one year prior to the alleged injury or wrongful act ("the expert witness").  It is very difficult to find a competent respected expert who will testify for the plaintiff, and to do so costs thousands of dollars.  An expert is usually needed to prove proximate cause as well.  Tennessee doctors almost never testify that another doctor has committed medical malpractice.  Like members of most professions, doctors are reluctant to testify that another doctor committed medical malpractice.  Our professional medical malpractice lawyers at our offices in Tennessee will guide you through this process.

What is informed consent?

A physician must follow the standard of care in giving you information prior to performing treatment on you.  In Tennessee, the standard is determined by what information a reasonable doctor would give the patient, not what information a patient thinks is important.  Usually, you must sign a form indicating your consent prior to anesthesia and surgical procedures.  Consent to perform surgery is not consent to perform surgery negligently.  A patient consents only to the risks that occur when the physician is doing what he/she is supposed to be doing, not to injuries that result from negligent acts.

What are defenses to a medical negligence suit?

  • The healthcare provider did not deviate from the standard of care
  • Any deviation from the standard of care did not cause the injuries complained of
  • The injuries were caused by an unavoidable process
  • The plaintiff was partially or entirely at fault*
  • The injuries were caused by the negligence of someone else

* In Tennessee, if the patient is 50 percent or more at fault, the patient recovers nothing.  If a patient is 49 percent at fault, the patient is awarded 51 percent of damages. So if damages of $100 are awarded the patient receives a judgment for $51.

As always, the best defense in a negligence suit is the help of medical malpractice lawyers, such as ours in Tennessee.  Contact us today.

What is the statute of limitations for medical malpractice cases?

In general, you have 1 year from the date you are injured to file a medical malpractice suit in Tennessee for claims under state law, or you may lose your rights.  If the injury is not discovered in that period, the period of limitation is 1 year from the date of discovery.  In any event, the action must be brought within 3 years of the wrongful act or omission, absent fraudulent concealment.  Statute of limitations issues can be complicated.  If you have been a victim of medical malpractice in Tennessee or elsewhere, act as quickly as possible to protect yourself.  For more information, contact one of our medical malpractice lawyers today.

What is the statute of limitations in wrongful death cases?

In cases for wrongful death the start of the statute of limitations period, usually begins on the date of the negligence, which is not necessarily the date of death.

Wrongful death cases require substantial claims.  It costs a substantial amount of money and requires a substantial investment of time by an experienced medical malpractice lawyer to pursue this type of case in Tennessee.  This tremendous commitment of resources requires competent attorneys handling these cases to limit their acceptance of cases to meritorious cases involving significant injuries.  Some cases cannot be pursued even if there was malpractice because the benefit of the suit is small compared to the expense and risk.

Elements of Damage

If you prevail in a medical malpractice issue in Tennessee, you are entitled to compensation for the following:

  • Medical expenses, past and future
  • Lost wages
  • Loss of earning capacity
  • Pain (past and future)
  • Suffering (past and future)
  • Loss of enjoyment of life (past and future)

In a wrongful death action, you are entitled to recover:

  • Medical expenses
  • Funeral expenses
  • Lost wages (from the time of injury to death)
  • The difference between the present value of your earning capacity less the present value of projected living expenses
  • Loss of companionship and services for certain close family members.

We cannot stress the importance of the meticulous handling of a medical malpractice case enough, whether it occurred in Knoxville, Tennessee, or elsewhere.  Contact Gilreath & Associates today. Our associates are the premier medical malpractice lawyers in Tennessee and will be happy to assist you in your time of need.

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Defective Products

What should I do if a defective product has injured my family or me?

  1. Secure the product in a safe place.
  2. Secure any documentation about the product including packaging, manuals, instruction booklets etc.
  3. Do not give the product to the manufacturer for "testing."  All defective product cases are won or lost in the early days following the accident.  Remember, a defective product must be secured immediately. Never assume that no one will want the wreckage of a destroyed automobile or ATV. Manufacturers are always on the lookout to secure and destroy evidence. If the evidence cannot be bought or found put everyone on notice, including owners, tow operators, wrecking yards, police impounds, and the like.  If they are directed to preserve important evidence and fail to do so, they can be subject to suit for destruction of evidence.
  4. Contact a lawyer, such as the product liability attorneys of Gilreath & Associates in Tennessee.  It is critical to the success of your case that you consult with a qualified attorney who specializes in product liability immediately if you have been injured by a defective product.  The laws are complex and filings have a specific time limit.  Do not delay in protecting your rights.

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Premises Liability/Slip and Fall

If I pursue a lawsuit against a landowner for a slip and fall accident, what are some of the things that the landowner might argue against me?

Slip and fall cases are difficult to win. If the hazardous condition was temporary (like a water spill), owners will probably argue that the spill occurred so soon before the incident that they could not have prevented it.

You should also expect the landowner (or the owner's attorney) to argue that you fell because you were inattentive, careless, or even intoxicated at the time.  If the landowner (or the owner's attorney) can prove that you were also at fault for your fall, that may reduce or eliminate your ability to recover for your injuries depending on the laws of your state.

What should I do immediately after a slip and fall, or shortly after the incident?

Inspect the area where you fell. What caused you to fall? Did anyone see you fall? Write down the names, addresses and phone numbers of anyone in the vicinity where the incident occurred — both those who saw you fall, and others who were there after the incident -- since you may need them as witnesses on your behalf if the landowner disputes your claim. Even if someone did not see you fall, he or she could, if necessary, describe your pain and the conditions of the floor, lighting, etc. immediately after you fell.

If the incident occurred in a store or place of business, speak with the manager or supervisor on duty.  Have them make a record of the incident, and get a copy of anything prepared by the business. If anyone (especially an employee, supervisor or manager) makes a comment suggesting that this has occurred before, or that they were aware of the condition before your fall, make a mental note. If possible, get the name of the person who made the comment. As soon as you are out of the store, write down the name and what exactly the person said, and who else heard him make the statement.
Even if the condition that caused your fall is permanent, or semi-permanent (like ice on a sidewalk in Duluth in winter).  Have someone take photographs of the area as soon as possible, so a record is made. Buying a tiny throwaway camera for $5 to $10 may be a good investment. Even "permanent conditions" have a way of changing if the landowner thinks that you might file a claim for injuries.

What is a dangerous or hazardous condition?

Property owners are responsible for injuries that occur as a result of a dangerous or hazardous condition on their property, which the owner knew about, or should have known about. The hazard may be obvious (such as a broken stair) or hidden (like a hole in a lawn that is partially covered by grass). In some instances it may not be apparent, as in flooring which appears normal, but is slippery. It could be permanent, like broken concrete with a change in elevation, or temporary, like a liquid spill in a supermarket aisle.

In general, an owner will be considered to have knowledge of a dangerous or hazardous condition if it is permanent in nature, since the owner knew, or should have known, about the condition before the incident occurs.

In the case of temporary conditions (like a liquid spill), the length of time that the condition existed before the incident occurred has legal significance.
If the spill occurred just before the incident, then the property owner may not be liable for injury, since the owner could not have known about the spill (and would not have been able to do anything about it) before the slip and fall occurred.  However, if the spill was present for some period of time before the incident, or occurs in an area subject to liquid spills, or is a recurring event ("every time they wash the floor someone slips") then the owner may be liable, even if the owner did not know about the spill before it occurred.

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Workers Compensation

What To Do If You Have A Work Related Injury:

  • Notify your employer of when, where, and how you injured yourself
  • Make sure you get a copy of the papers filled out by the employer, and let them know if there is any mistake
  • If your doctor says you are unable to work, make sure your employer knows
  • Make sure the doctor knows exactly what is happening to you, don't just say "fine" or "a little better", give the doctor specifics
  • If you receive notice that any bill is unpaid, contact your Tennessee workers' compensation insurance company immediately and find out why the bill is unpaid
  • Everyone you talk to (your employer, the insurance company, or the State) will be taking notes on what you say. Keep your own notes of what happens and your conversations.
  • Make sure your doctor knows that you want to get back to work as soon as possible.  If you have problems after returning to work let your doctor know immediately.
  • If your employer or co-workers ask when you will return to work, tell them "as soon as the doctor lets me"

Contact one of our workers' compensation attorneys for a free consultation to discuss your specific situation.

Do I Need A Lawyer To Claim Workers' Compensation in Tennessee?

If your injury or illness is serious or if it affects your arms, legs, neck, or back you should talk to one of our workers' compensation lawyers about your claim, even if it is elsewhere in the U.S. People who handle their own claim often make innocent, but serious mistakes.
A Lawyer Experienced In Handling Tennessee Workers' Compensation Can Usually:

  • Make sure that you don't lose your benefits due to a miscommunication between the doctor and insurance company
  • Confirm the insurance company is paying you the correct amount
  • Evaluate the doctors on the panel offered to determine if one might be best for your case
  • Compare the impairment rating in your case to the rating given by other doctors for the same or similar injuries
  • Evaluate your case for factors that may make it worth more, or less than other cases
  • Help you evaluate the importance of keeping "future medicals" versus a cash payment for "future medicals"
  • See that you are treated fairly at any "Benefit Review Conference"
  • Advise you of the possible financial implications of a Tennessee workers' compensation settlement on social security benefits and other claims
  • Advise you of the effect of your settlement on your right to ask for additional monies if you lose your job in the future

Structure your settlement so it will not reduce a later award for social security disability.

What is the Tennessee Workers' Compensation Act, what is covered and how can I qualify?

The Tennessee Workers' Compensation Act is a special law passed by Tennessee legislature to give workers financial benefits when they are injured on the job (provided their employer has five or more employees). This law does not apply to farm labor, domestic help, state, or public employees. However, state employees are entitled to similar benefits through the State Board of Claims.

Injuries Covered:

Any injury, occupational disease, or death, which occurs "out of and in the course of employment," is covered by Tennessee workers' compensation. It does not matter who was at fault in the accident. Covered injuries include broken bones, muscle strains, back and neck problems, loss of strength and/or flexibility, heart problems, diseases related to your employment, and others.

Qualifying For Benefits:

If you are injured on the job, you must notify your employer as soon as possible. If the employer doesn't have actual notice of your injury (as might be the case where your supervisor approved you going to the hospital for x-rays) then you must give the employer written notice within 30 days of the injury. You may lose your right to claim Tennessee workers' compensation if you fail to do this. The safest action for any injured worked is to see that someone files a correct, written report of injury.

The Waiting Period:

Your benefits are limited to medical expenses for the first 7 days. If you continue to be disabled and unable to work after 7 days, you can receive retroactive benefits from the date of your injury or illness. Workers' compensation cases can quickly get complicated. If you have any questions regarding your case, contact one our expert workers' compensation attorneys at our offices in Tennessee for a free consultation.

What Should I Know About Making a Tennessee Workers' Compensation Claim?

Tennessee workers' compensation benefits include medical expenses, partial pay while you are off work, and compensation for permanent limitations or restrictions, which affect your wage earning ability. The following paragraphs describe those benefits in some detail.

Medical Expenses Covered Under Tennessee Workers' Compensation:

Your employer is legally obligated to pay for all medical treatment, surgical procedures, prescriptions, medical supplies, or equipment, which is related to your injury and prescribed by the "authorized" doctor. This may include future medical expenses related to your injury. The employer or their insurance company is only obligated to pay bills for "authorized" medical treatment (unless they have refused to give you the names of doctors to see, or the bill is for emergency room services less than $300). Tennessee workers' compensation law requires your employer or their insurance company to give you a "panel" of three doctors to use in making your choice of doctor. Since the doctor you choose can make such a large difference in your case, this is a decision where it is best to consult one of our workers' compensation lawyers who is experienced in handling on-the-job injury cases.

Partial Pay While You Are Unable to Work:

"Temporary total disability" is a term, which describes the time period when an injury prevents you from returning to work. This is generally the time needed to recover and rehabilitate from your injury. It ends when your doctor releases you to go back to work, or determines that you have reached your maximum medical improvement. During your period of "temporary total disability", you are entitled to compensation equaling 2/3rds of your average weekly wage. The law provides a maximum figure so that, regardless of your actual wages, your employer need not pay more than the legal weekly maximum. For more information on this and other Tennessee workers' compensation issues, contact our workers' compensation attorneys.

Workers' Compensation Payment For Permanent Limitations And Restriction:

Most injuries do not result in total disability, but in restrictions, which can limit a worker's strength, endurance, or capacity for work. This is called "permanent partial disability". As an injured worker, you are entitled to compensation for any permanent impairment, even though you may have returned to your regular job at the same (or even better) pay. This is in addition to the temporary benefits you receive while recovering from your injury. One of our workers' compensation lawyers at our offices in Tennessee will be more than happy to answer your questions.

How Much Is My "Permanent Disability" Worth?

The amount of compensation you are entitled to depends on the nature of your injury, its effect on your wage earning capacity, and the impairment rating given by your doctor. If anyone with your employer, their insurance company or the State says, "This is all you can get." Get a second opinion! Our workers' compensation attorneys can answer these and other questions about your case in Tennessee and the U.S.

What Is A Rating For Permanent Impairment?

When you have recovered (or reached "maximum medical improvement") your doctor will generally determine whether you have some permanent medical impairment. This will, in part, determine what you will be paid for your permanent problems. Doctors do not always agree on whether someone has a permanent impairment, or how much. Doctors who are approved by a Tennessee workers' compensation company may believe that you have no impairment, or a small impairment, when another doctor may believe your impairment is much higher.

Can I Determine What My Workers' Compensation Claim Is Worth?

It is not easy, and if you are handling your own claim, you will probably be dealing with an insurance adjuster who is more experienced than yourself. The adjuster's goal is to minimize the amount paid to you, so take anything said with a grain of salt. There are maximum payments for work related injuries, which are permanent, but a different doctor may evaluate your case much more favorably than the doctor paid by Tennessee workers' compensation. The question, "How much is my case worth?" is complex enough to consider getting expert legal help. Our workers' compensation lawyers will be more than happy to assist you.

What Is The Benefit Review Conference?

When you reach maximum medical improvement your employer and/or their insurance company may demand a "Benefit Review Conference." During such a conference the employer and insurance company will have representatives present to "negotiate" a settlement that is good for them. If you've been told to come to a benefit review conference, you should have someone with you experienced in workers' compensation such as one of our lawyers in our offices in Tennessee. If you go by yourself to a meeting like this, you may be told you are being offered all your case is worth, and feel pressured to "make a deal." Don't agree to any offers until you have had time to discuss the possible advantages and disadvantages with one of our experienced workers' compensation attorneys in Tennessee.

Do I Have To File a Workers' Compensation Claim?

If your case is not filed within one year of your injury or one year from the time you knew your injury was permanent, you may lose any right to make a Tennessee workers' compensation claim. Many workers' compensation claims are settled without filing suit, but filing the case may be necessary to protect your claim. You should consult one of our workers' compensation lawyers in to determine how much time you have left before it is necessary to file suit. 

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Railroad Injuries/FELA

What Are My Rights Under FELA?

Under the FELA laws, any employer who is injured while at work is entitled to collect fair compensation and to return to work if medically qualified. Often, railroads try to get rid of an injured employee by pressuring them into taking disability retirement or partial compensation. Under FELA law, you cannot be forced into retirement if you are physically able to work. Railroads hire claims agents to negotiate with injured employees and their families. The agent's goal is to protect the railroad management's interest and to save it money.

What Should I Do If I Get Injured At Work?

Accidents at work should be reported to a supervisor immediately. Failing to report an accident could result in disciplinary action by the railroad or the railroad's denial that the accident occurred at work.

Report the accident facts to your supervisor, particularly information about defective equipment and/or unsafe conditions that contribute to the injury. Give names of co-workers who were present when the accident occurred. Don't volunteer information not asked for and don't claim responsibility for the accident. Never let your supervisor answer questions for you.

Should I See A Lawyer?

When you are injured, your interests and the railroad's interests are opposed to each other. Your goal is to collect what you need and what the railroad owes you, and the railroad management's goal is to pay you as little as it has to.

Railroads have lawyers and claims agents on their payroll to protect their interests. The minute you are injured, their team starts to work on your case. While they are building their case against you, you should be trying to protect your interests and those of your family.

You may represent yourself to negotiate a settlement with the agent. You will recover a greater settlement, however, with a lawyer who understands the fine details of FELA law and who can represent your interests from a position of strength and knowledge.

How Do I Find An Experienced Lawyer?

In choosing a lawyer, it is important that the lawyer knows FELA law and has experience in trying FELA cases. FELA cases are very difficult. Most experienced lawyers will take your case on a contingency basis and the fee will be a percentage of the amount of money recovered. If you need assistance in finding a lawyer, your local union chairperson can advise you who to contact.

Can The Railroad Fire Me If I Hire a Lawyer?

A railroad cannot fire you for hiring a lawyer to represent you. Understanding your rights and having good representation is the best way to reach a fair and just settlement for your injury claim. The railroad may try to convince you that you do not need an attorney, but you have the legal right to hire one.

The Federal Employer's Liability Act states:

"Whoever, by threat, intimidation, order, rule, contract, regulation or devise whatsoever, shall attempt to prevent any person from furnishing...such information to a person in interest, or whoever discharges or otherwise disciplines or attempts to discipline any employee for furnishing such information to a person in interest shall, upon conviction thereof, be punished by a fine of not more than $1,000 or imprisonment, for not more than one year, or both such fine and imprisonment, for each offense."

Will I Have To Go To Court?

It is a proven fact that the largest claims are won when a case is prepared for court. You should keep good records, obtain good counsel and be ready to go to court to prove the cause of your injury. Even if you were at fault to some extent (contributory negligence), it will not defeat your claim. Negligence of the injured worker can only be used to reduce the settlement.

In certain cases brought under the Boiler Inspection Act (defects in engines) or the Safety Appliance Act (defect in cars), contributory negligence cannot be used against the injured worker.

Where Will My Case Be Tried?

Under FELA, your case can be heard in the state court or the U.S. federal court, whichever suits your needs the best. The right of an injured worker to choose the trial location and court is an important right. It gives you the right to have your case tired in a city where the awards are usually higher than in a small town. It also gives injured minority workers a better chance of receiving a fair hearing.

What Should I Do If There Is An Investigation?

Before the investigation, consult with you lawyer to make sure that you don't say anything that could be used against you. The railroad's purpose in conducting an investigation is to get you to say something that will lessen the railroad's responsibility for the injury suffered. The railroad must prove this innocence, however, and you don't have to testify against yourself.

If you are under a doctor's care or on medication, notify your union representative and have the investigation postponed until you are physically and mentally alert.

What Are My Rights Concerning Drug Testing?

You have the right to do several things:

(1) Ask why and on what basis you must be tested. Is it according to the railroad's Rule G; or the Federal Railroad Administration regulations and if so, under what sections? If based on FRA rules, are you a "covered employee" as defined by FRA?
(2) Ask what the consequences are if you refuse to take the test or if you test positive.
(3) Ask what test is being administered. Request the name and address of the lab and ask for pamphlets describing the lab and its methods.
(4) Ask how the specimen will be handled, what levels will be used to prove that it's positive, and what records will be kept. Obtain the records.
(5) Request that a union representative or at least a co-worker be present throughout the testing.
(6) Make sure the specimen is properly sealed and labeled and request to sign the label.
(7) Obtain a portion of the specimen to run an independent test yourself. Insist that your sample undergo a confirming test if it tests positive.
(8) If you are certain that you are "clean," insist that a blood sample be taken and tested along with the urine sample.
(9) Ask when you will be notified of your test results, and what your employment status will be pending the outcome.
(10) As soon as possible after the test, have an independent test run by a family doctor or private lab.
(11) Keep a record of all prescription or over-the-counter drugs taken during the week before your test, and all foods ingested within 24 hours before the testing.

Do I Have To Use A Company Referred Doctor?

You do not have to use the company doctor except for periodic physicals or when you are released by your doctor to return to work. You have a right to see the doctor of your choice and one who specializes in treating the type of injury you have. When you visit your doctor, describe your job and explain how the accident happened. If you supervisor takes you for medical attention, do not let him go into the examining room with you or talk to the doctor about your condition. You have the right to privacy.

Never sign an authorization form for the railroad to obtain medical records from your doctor. Keep a record of all medical bills, medications and special items that you purchase because of the accident. You have a right to reimbursement for these items in your claim.

If your doctor advises you to stay off work, don't accept even light duty work from the railroad. You run the risk of being injured further. If you take light duty work, the railroad does not have to report your accident to the Federal Railroad Administration (FRA). If a report is made, the FRA will investigate and order the railroad to repair unsafe conditions. They may also impose a fine on the railroad if the unsafe conditions are not repaired within a reasonable time.

How Long Do I Have To File A Claim?

Under FELA, the statute of limitations is three years from the date when you were injured. It is not a good idea, however, to wait until the time is almost up to file suit. The only way that an attorney can prove liability in your case is through investigation. This means that he will need to photograph the area, talk to witnesses and co-workers, inspect and photograph defective equipment or tools, and determine what could have prevented the accident.

The longer you wait, the harder it will be to obtain these things. It will also take longer for your case to go to court. You will be losing money, what the money could buy for your needs and what the money would earn in interest.

How Much Can I Recover?

The amount of money that you can collect for your injury is determined by the seriousness of the injury, the losses you have suffered and the negligence on the part of the railroad or any of its employees. Taken into consideration are: your inability to function as you had before the accident; disfigurement or scarring from the accident which changed the appearance of any part of your body; pain and suffering you are experiencing now and which you will most likely experience in the future; expenses for medical treatments now and in the future; lost wages; and if you are permanently disabled, wages that you will lose until the time that you would have normally retired.

If a worker is killed, the surviving family members are entitled to collect an award for each of the following elements of damage proved by the evidence:

(1) Pain and suffering experienced or witnessed before the worker's death.
(2) Expenses for medical care and treatment.
(3) Money losses now and in the future as a result of the death. This includes compensation for loss of care, attention, training, and guidance which would have been given to minor children.
(4) Compensation for any treatment benefits survivors would have received from the Railroad Retirement Board.

Summary

As an employee of the nation's railroads, you have more protection than any other working person in the United States under The Federal Employer's Liability Act. Unless you know and understand your rights, however, they might as well not exist. You have only one chance to settle with the railroad. You could be medically disqualified the day after your settlement. Get to know and understand your rights under FELA law. You have too much at stake not to be knowledgeable.

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Insurance

What can I do when an insurance company refuses to pay a claim?

In some instances an insurance company will refuse to pay a claim submitted by its policyholder. This is often referred to as "denying" the claim. The claim may be denied, for example, because the company has determined that the loss is not a type that is "covered" by the terms of the insurance policy or that the person who suffered the loss is not an "insured" for purposes of the policy or that a policyholder engaged in some type of misconduct which "voided" the coverage. Because of the complexity of insurance policies and because the resolution of coverage disputes often depends on careful analysis of the unique facts and circumstances of each case in light of applicable state law, the assistance of an attorney experienced in the handling of insurance coverage matters is strongly advised.

What is a Lawsuit for bad faith?

All insurance policies contain an implied obligation applicable to the insurance company of "good faith and fair dealing" towards its insured. When a claim is presented, this implied obligation means that an insurance company cannot simply look for reasons not to pay. Instead, the company must make a thorough investigation of the claim, must consider all reasons and circumstances that might support the claim, and must give as much consideration to the financial interest of the insured as it gives to its own financial interest.

If an insurance company refuses to pay a claim that should be paid or offers to settle a claim for less than it knows the claim is worth or denies a claim without adequate investigation, this could give rise to a so-called bad faith claim against the insurance company, i.e., a claim that the company has breached its implied obligation of good faith and fair dealing.  If the company is found to have acted in bad faith in its handling of a claim, the insured is entitled to all damages resulting from that action, including certain types of damages that would not be available just for breach of contract. In cases of extreme or outrageous misconduct by an insurance company, the insured also may be entitled to receive punitive damages.

Are there any options for resolving a dispute with my insurance company other than suing the company in court?

Some insurance policies contain a provision allowing or requiring arbitration of certain disputes between the insurance company and the insured, and this may include disputes regarding certain types of claims. "Arbitration" is a procedure for resolving disputes by use of neutral, private individuals ("arbitrators") as an alternative to a lawsuit, and it often is a cheaper and faster method of resolving contract disputes as compared with a court proceeding. This procedure usually is not available unless specifically stated in the policy or unless the insurance company and policyholder mutually agree to submit their dispute to arbitration. See also our section on arbitration.

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Anti-Trust Laws

What are antitrust violations?

Antitrust violations are behaviors that violate United States antitrust laws, which were designed to prevent behavior that stifles business competition and eliminate unfair business practices. These laws, which were developed in response to the growth of big business at the end of the 19th century, are associated with tenets of consumer protection and the open market.

Notable United States antitrust laws include the Sherman Antitrust Act (15 U.S.C. §1-7), which outlawed conspiracies that restrain interstate or foreign commerce, and the Clayton Antitrust Act (15 U.S.C. § 12-27), which outlawed monopolies and anti-competitive agreements. However, some groups and activities are exempt from antitrust laws: these include labor unions, public utilities, hospitals, public transit and water systems and suppliers of military equipment.

Antitrust crimes can include predatory pricing (in which a firm sets an extremely low price for their product in order to prevent new suppliers from entering the market or drive their competitors out of business), tying (in which the purchase of one product is conditional on the sale of another), and price fixing (in which competitors make agreements regarding the pricing of their products).

In the United States, the Federal Trade Commission and the Antitrust Division of the Department of Justice regulate and enforce antitrust legislation. State attorneys general can enforce both federal and state antitrust laws. Penalties for antitrust violations range from minor fines to maximum criminal penalties of ten years' imprisonment and a $1 million fine for individuals. However, some violators of antitrust laws do not face criminal prosecution. Rather, they face proceedings in civil court under the "rule of reason" standard, which attempts to determine the possible worthiness of anti-competitive conduct. This does not apply to bid rigging, price fixing, or market allocation schemes, which have been deemed per se illegal by the United States Supreme Court.

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