http://www.bollwerktatlow.com/blog/ The St. Louis workers compensation attorneys at the law offices of Bollwerk, Ryan & Tatlow provide updates regarding Illinois and Missouri accidents and other legal cases though their blog. en-us 2012 Bollwerk & Tatlow, LLC., All Rights Reserved, Reproduced with Permission http://www.bollwerktatlow.com/blog/ Fri, 18 May 2012 04:46:37 GMT http://www.bollwerktatlow.com/images/logoprint.gif http://www.bollwerktatlow.com/blog/ Erisa cases involving life, accidential death and disability policies are often provided to employees through a group insurance plan for as part of an employment benefit. When these policies are properly written they are controlled by Federal Law entitled ERISA. If you have a claim for benefits, it is important to follow all guidelines in the plan on submission of evidence of the claim, including proof of the disability or cause of death while the administrative appeal is pending. If you do not do so and the claim is denied and there are no more administrative appeals available, your only remedy available is to sue the company in Federal Court. Once a lawsuit has to be filed, the lawsuit is almost always based upon the administrative record that was before the insurance company or claims' administrator that decided the claim. If you failed to introduce important evidence that supports your claim, you can not do so after the claim has been denied. That is why it is extremely important to consult with a qualified ERISA attorney before your final appeal is exhausted. If you do not do so, you may not find an attorney to take your case, or if he/she does, the case may be lost due to failing to introduce some important medical records of your condition or of the cause of death while the administrative appeal was pending. Insurance companies may tell you that you do not need an attorney and that they will obtain all of the necessary medical records. However, it is your burden to submit the evidence to the company on your claim. If you do not do so and it is denied, you can not blame the company for their failure to obtain your records. The court rarely admits further evidence into the record, even if you think it is relevant and should have been used to decide your case.  Therefore, make sure to submit all evidence of your medical problems, or of the cause of death or disablity that the insuance company or claims' administrator needs to decide the claim.
]]> http://www.bollwerktatlow.com/blog/erisa%2Dcases%2Dadministrative%2Dappeals%2Ecfm www.bollwerktatlow.com-80925 Fri, 04 May 2012 08:00:00 GMT Although the Missouri State Senate has already voted to override Governor Jay Nixon's veto of a new Workers' Compensation bill, the Missouri House is taking another look at the bill to try to make changes that would be accepted by the Governor. 

The newest bill would make it mandatory for occupational disease claims to go through the State's Workers' Compensation Division rather than the civil courts. Governor Nixon found a similar bill unfair to workers and vetoed it earlier this month.  Now, the House has passed this newest bill and hopes to move it to the Senate for a vote soon. 

Critics of the vetoed and new bills feel that they cater to business owners and wealthy business interest groups rather than the workers for whom the workers' compensation program was designed to help.

Also addressed in the new bill is the State's Second Injury Fund which has been facing financial hardship for the last couple of years.  The Second Injury Fund was created to encourage employers to hire those injured previously.  
]]> http://www.bollwerktatlow.com/blog/missouri%2Dstate%2Dhouse%2Dof%2Drepresentatives%2Dre%2Dopen%2Dworkers%2Dcompensation%2Ddebate%2Ecfm www.bollwerktatlow.com-78922 Fri, 06 Apr 2012 08:00:00 GMT  
Over ten years after he retired, G.S. contacted Mr. Tatlow to discuss his claim. Mr. Tatlow submitted the life insurance buy-out claim and argued that Anheuser Busch and Great West Insurance Company had breached its' fiduciary duty to G.S. and that because of this, the three year limitation to make such a claim, under the contract did not apply. Initially, Anheuser Busch and Great West refused to consider the claim arguing they met all obligations to G.S. After Mr. Tatlow represented 3 or 4 more workers with the same claims against Anheuser Busch and Great West, he filed complaints against Great West with the Department of Insurance for violating state insurance regulations. Eventually, Great West Insurance Company agreed to review the claim of G.S. and waive the three year time period to make a claim. After receipt of Mr. G.S's medical records and medical consultant's reports, Great West agreed that G.S. was permenently and totally disabled and paid him the policy limits of his life insurance policy.

This case is significant because it represents the principal that a plan administrator and insurance company owe the plan participants a fiduciary duty and a duty of loyatly. A fiduciary and plan administrator can not withhold valuable information from the plan  participants and hold the participants to strict time periods and requirement of the plan if it has concealed the time limits to apply for the benefits or has withheld information on how to apply for the benefits or if it has withheld the existence of the plan itself from the plan participants/workers.
]]> http://www.bollwerktatlow.com/blog/phil%2Dtatlow%2Dobtains%2Dpolicy%2Dlimits%2Dof%2Dlife%2Dand%2Ddisability%2Dinsurance%2Dpolicy%2Dfor%2Danother%2Danheuser%2Db%2Ecfm www.bollwerktatlow.com-78737 Tue, 03 Apr 2012 08:00:00 GMT
In Missouri, the Second Injury Fund stopped settling cases in 2009, forcing employees to go through a hearing process to determine if the employee is entitled to benefits.  Missouri Attorney General Chris Koster has admitted the Fund is in trouble and has laid off lawyers who were defending the fund and stopped paying new awards for permanent, total disabled employees in order to cut back spending.  However, these efforts may not be enough.  Rising healthcare costs and a 3% surcharge cap passed into law in 2005, may be partially to blame for Missouri's financial woes.  Although there are several critics of second-injury funds, those veterans who have been awarded funds and rely on those funds to support their families, are afraid of what would happen if second-injury funds were no longer available.  John Cleeton, a veteran of Vietnam, police officer and recipient of Second Injury Fund money in Missouri puts it this way, "It helps people -- it keeps them from having to resort to begging at the corners."
]]> http://www.bollwerktatlow.com/blog/missouri%2Ds%2Dsecond%2Dinjury%2Dfund%2Dnot%2Dthe%2Donly%2Done%2Din%2Dthe%2Dcountry%2Dsuffering%2Ecfm www.bollwerktatlow.com-77899 Tue, 27 Mar 2012 08:00:00 GMT Johnson & Johnson, the second biggest healthcare products maker in the world, is taking heat and facing lawsuits in connection with their vaginal mesh product, Gynecare Prolift.  The mesh, used to treat incontinence or pelvic organ prolapse in women, was put on the market in March 2005, but wasn't approved by the Food and Drug Administration (FDA) until May of 2008. Johnson & Johnson excuses their behavior by stating that they were not required to get approval from the FDA because the Prolift was similar to another product they make that was already approved by the FDA for use in humans.  Although the Prolift is made of the same material as the previously-approved Gynemesh, it has a different use and therefore should have been reviewed by the FDA prior to its release to the market.  Gynemesh was made to help treat hernias and other defects with connective tissue.  Prolift is used for entirely different purposes like the treatment of pelvic organ prolapse.

An FDA report in July 2011 found deaths, injuries and malfunctions tied to vaginal mesh for prolapsed organs increased fivefold. Findings from that report lead to an advisory panel to urge the FDA to reclassify such mesh products as "high-risk". There are several class-action suits pending against companies who manufacture similar devices and products.  This newest problem for Johnson & Johnson comes after the company has endured recalls of hip implants and over-the-counter medications.
]]> http://www.bollwerktatlow.com/blog/johnson%2Ecfm www.bollwerktatlow.com-77775 Mon, 26 Mar 2012 08:00:00 GMT
Out of this devastation, however, I have felt a renewed pride for being an attorney.  The lawyers of this state wanted to do something to help, and boy, they sure have helped.  Many of the state's legal agencies, including The Missouri Bar, Legal Services of Missouri, and the Missouri Association of Trial Attorneys (just to name a few) got together and formed The Legal Help in Disasters Committee.  The committee coordinates volunteers from their respective agencies to give free legal help to victims of natural disasters.  Legal problems range from landlord/tenant issues to real estate deed issues to price gouging by repair contractors.  In coordination with the Red Cross, volunteers have been stationed at service centers near the disaster areas.  Victims of the storms can come to the center and meet with a lawyer, on the spot, for free. 

I get to see the work of these individuals being a part of the Missouri Association of Trial Attorneys' Emergency Response Team.  Some of these folks are amazing in their selflessness. 
]]> http://www.bollwerktatlow.com/blog/more%2Dtornadoes%2Dcause%2Dmissouri%2Ddevastation%2Dmissouri%2Dattorneys%2Dstep%2Din%2Dto%2Dhelp%2Ecfm www.bollwerktatlow.com-76854 Thu, 08 Mar 2012 08:00:00 GMT Senate Bill 572 is circulating in the Missouri State Senate right now, and some of the changes are not great for the state's workers.  The bill proposes a fix to the ailing Second Injury Fund.  Although it is good that an effort is being made to inject money into the Second Injury Fund to pay its current obligations, the bill also proposes to eliminate future Fund payments in cases of permanent partial disability and in permanent total disablitity cases where the pre-existing disability is not work- or military-related. The bill also proposes several other changes to the Second Injury Fund's obligations, including eliminating the Fund's obligation to pay weekly rehabilitation benefits. 

Other worker-unfriendly portions of the bill include eliminating an employee's ability to sue a co-employee for damages outside of the worker's compensation system, even in cases where the co-employee was grossly negligent.  Another section of the bill proposes to eliminate the Second Injury Fund's obligation to pay the fair, reasonable and necessary medical expenses of an employee whose employer is uninsured. 

Stay tuned as this bill will undoubtedly go through several changes before it is presented for a vote. 
]]> http://www.bollwerktatlow.com/blog/workers%2Dcompensation%2Dchanges%2Dbeing%2Dproposed%2Din%2Dmissouri%2Dsenate%2Ecfm www.bollwerktatlow.com-75014 Fri, 10 Feb 2012 08:00:00 GMT State Representatives Mike Colona (D-St. Louis) and Timothy Jones (R-Eureka) have put their differences aside and introduced legislation that will give attorneys a pass when it comes to the security checks at the St. Louis County Courthouse. They propose allowing attorneys who show their Missouri Bar Association card at the check point to be excused from going through the metal detectors like they are required to do now.  

The security procedure for the courthouse currently requires all those entering to remove their shoes, belts and all metal from their person before they can walk through the metal detector.  Some equate the procedure to that which passengers must go through before entering a gate at an airport.  The metal detectors are set higher than most other courthouse metal detectors in the area, after a shooting occured at the St. Louis County courthouse 20 years ago, and after a more recent, lesser-known incident where a box cutter made it into a courtroom.  Every person standing in line must take the time to remove their shoes, belts, jewelry, change and all other metal from themselves in an effort prevent setting off the metal detectors as they pass through.  Then, they must re-dress before they can continue to their destination in the building.  This procedure is not found at any other area courthouse, or even the state capitol where metal detectors aren't even in use. 

Attorneys, like Representatives Colona and Jones, find the experience time-consuming and has led to instances of attorneys being late for hearings or other court appearances.  Some attorneys are required to enter and exit the courthouse several times a day and therefore have to go through the security procedure each time they leave and come back.  Supporters of the proposal say that only having to show their Missouri Bar card could save significant time not only for attorneys, but for the other citizens who have business within the building.  Those against the proposed legislation say that attorneys can pose just as much threat to those in the courthouse as any other person and therefore, should not be exempt from the procedure.    
]]> http://www.bollwerktatlow.com/blog/new%2Dlegislation%2Dlooks%2Dto%2Dchange%2Dst%2Dlouis%2Dcounty%2Dcourthouse%2Dsecurity%2Dprocedures%2Ecfm www.bollwerktatlow.com-74407 Mon, 06 Feb 2012 08:00:00 GMT ]]> http://www.bollwerktatlow.com/blog/new%2Dstate%2Dsenate%2Dbill%2Dlooks%2Dto%2Dlimit%2Dworkers%2Dcompensation%2Dcoverage%2Ecfm www.bollwerktatlow.com-73440 Sat, 21 Jan 2012 08:00:00 GMT ]]> http://www.bollwerktatlow.com/blog/ex%2Dnfl%2Dplayers%2Dseek%2Dmedical%2Dmonitoring%2Dand%2Ddamages%2Dfrom%2Dleague%2Dfor%2Dbrain%2Dinjuries%2Ecfm www.bollwerktatlow.com-72209 Wed, 28 Dec 2011 08:00:00 GMT
Opened in 2009, Innovative Concept Academy has helped 18 students earn their high school diploma or GED.  Two of those students have gone on to college.  As of this year, 375 students between the ages of 10 and 18 are enrolled in the academy. 

The Today Show was on hand when Wal-Mart surprised Judge Edwards and the students of Innovative Concept Academy with a truck load of supplies.  Included in that truck was enough food to feed the students for a year as well as a brand new winter coat for each student at the academy.

Here is a link to the video of the Today Show's segment  from the December 21, 2011 broadcast.
]]> http://www.bollwerktatlow.com/blog/st%2Dlouis%2Djudge%2Djimmie%2Dedwards%2Dschool%2Dfeatured%2Don%2Dthe%2Dtoday%2Dshow%2Ecfm www.bollwerktatlow.com-71968 Thu, 22 Dec 2011 08:00:00 GMT
Using cell phone records as part of the investigation, NTSB found that the pickup truck driver had sent and received a total of 11 text messages in the minutes leading up to the accident.  There is a current law in Missouri banning texting while driving for any driver under the age of twenty-one, a law the pickup driver clearly ignored.  Missouri State Highway Patrol records reveal that only 120 citations have been handed out the past two years as a result of this law. 

Although several states have adopted laws limiting or banning the use of cell phones by drivers, this is the first time a national safety board has recommended a nationwide ban.  Opponents of this recommendation say it would be too hard to enforce and impedes on the rights of drivers.  Proponents of the ban say safety of all people on the road should be the priority.  It is unclear whether or not the federal government will take the NTSB recommendation to heart and try to issue a nationwide ban. 

Regardless if a nationwide ban is enacted, or Missouri alone changes their laws regarding cell phone use while driving, many fellow students of the young woman who lost her life in the accident (some who survived the accident themselves) have already pledged not to use their cell phones while driving. 


]]> http://www.bollwerktatlow.com/blog/national%2Dtransportation%2Dsafety%2Dboard%2Drecommends%2Dfull%2Dban%2Don%2Dcell%2Dphone%2Duse%2Dwhile%2Ddriving%2Ecfm www.bollwerktatlow.com-71596 Mon, 19 Dec 2011 08:00:00 GMT http://www.bollwerktatlow.com/blog/social%2Dnetworking%2Dsites%2Dused%2Das%2Devidence%2Din%2Dlawsuits%2Ecfm www.bollwerktatlow.com-70732 Thu, 08 Dec 2011 08:00:00 GMT http://www.bollwerktatlow.com/blog/missouri%2Dchamber%2Dof%2Dcommerce%2Dto%2Dlobby%2Dfor%2Dworkforce%2Dissues%2Ecfm www.bollwerktatlow.com-70477 Tue, 06 Dec 2011 08:00:00 GMT Johme v. St. John's Mercy Healthcare to the state's Supreme Court.  The high court will be asked to decide whether certain accidents are compensable under the workers' compensation law. 

In Johme, the employee, a billing representive for St. John's, broke her pelvis when she fell while making coffee in the kitchen at work.  She did not slip or fall on something on the floor.  Rather, she slipped out of her sandal and fell.  The Court of Appeals held that nothing about her job as a billing representative caused the fall and injury, so it did not "arise out of" her employment as required by the Missouri workers' compensation law.  That decision appears to be in conflict with a decision of the Southern District Court of Appeals in the case of Pile v. Lake Regional Health System.  As a result, the Missouri Supreme Court is going to be asked to resolve the conflict between the decision of the Southern District and the decision of the Eastern District. 

The Missouri workers' compensation law was amended in 2005. Currently, an injury at work may not be compensable if  if it came "from a hazard or risk unrelated to the employment which workers would have been equally exposed outside of and unrelated to the employment in non-employment life." (citing § 287.020.3(2)(b)). In rejecting Johme's injury as a compensable worker's compensation claim, the Eastern District in Johme said, ".. the injury here did not occur because Johme fell due to some condition of her employment. She wore sandals to work of her own accord, and there is no allegations that the floor of the kitchen area had any spills or other hazards. In short, while making coffee Johme unexpectedly slipped off her sandal, fell and injured her pelvis. Nothing about her employment as a billing representative caused the fall and injury, and we should not say it 'arose out of' her employment. Prior to the 2005 amendments, Johme's argument would have been more persuasive, but the Legislature has since raised the bar. Under the current scheme, the above stated facts simply do not meet the threshold for an award of worker's compensation."

Again, this decision is seemingly in conflict with a decision of the Southern District in Pile, where the court held that if the risk of injury is related to employment, it is compensable under the workers' compensation law, and it doesn't matter if the worker would have been equally exposed to the risk of injury in non-employment life.  

This is a very important case to watch.  Judge Romines, who wrote the Johme decision, said that his interpretation of the law would mean that the "personal comfort doctrine" no longer exists. If the Missouri Supreme Court agrees, this could really deal a blow to workers who are injured on a break or on their way to and from the bathroom, as those injuries would no longer be compensable workers' compensation claims.  Again, this is a very important case for the Missouri Supreme Court to examine for injured workers.  We will follow its progress in the courts and will report the Supreme Court's decision when it is reached.]]> http://www.bollwerktatlow.com/blog/missouri%2Dsupreme%2Dcourt%2Dset%2Dto%2Dinterpret%2Dworkers%2Dcompensation%2Dequal%2Dexposure%2Ecfm www.bollwerktatlow.com-67842 Mon, 31 Oct 2011 08:00:00 GMT Riley v. Sun Life and Health Insurance Co.

James Riley worked for Summaria Systems until he became disabled from multiple sclerosis.  He applied for ERISA long term disabilty benefits, and his claim was approved.  The Plan began paying benefits.  Mr. Riley was also a Vietnam War veteran and he received monthly VA disability benefits. Riley's MS was considered a service-related disability contracted during a period of war. The disabilty plan, Sun Life, decided that Mr. Riley's long term disability benefits should be reduced, as Sun Life claimed they were entitled to an offset, since the Plan said that long term disability benefits could be reduced by "other income."  Riley appealed the Plan's decision to lower his monthly benefits, and the district court upheld the plan's decision to reduce benefits.  Mr. Riley then appealed to the US Court of Appeals.

The US Court of Appeals reversed the district court's decision. Although the plan did allow for offset for income derived from Social Security, Railroad Retirement, or "any other similar act or law provided in any jurisdiction,"  VA benefits are not similar to Social Security and Railroad Retirement benefits, which are federal insurance programs.  Instead, VA benefits are the federal government's obligation to wounded men and women during military service.  As such, the court held that VA benefits are not similar to Social Security or Railroad Retirment Act benefits and thus, are not subject to the offset for "other income" benefits under the plan. 

ERISA long term disability plans often contain clauses that allow the plan to offset the benefits for other income you receive.  If you receive long term disability benefits and the plan administrator attempts to reduce your benefits for other income you receive, give us a call at 314-315-8111 and we will review the plan for you to see if the plan is actually allowed to offset your benefits.]]> http://www.bollwerktatlow.com/blog/erisa%2Dlong%2Dterm%2Ddisability%2Dbenefits%2Dare%2Dnot%2Dto%2Dbe%2Doffset%2Dby%2Dva%2Dbenefits%2Ecfm www.bollwerktatlow.com-66866 Sun, 16 Oct 2011 08:00:00 GMT unless the employer was not prejudiced by failure to receive the notice."

The italicized part of the statute's language is important, because it excuses the lack of written notice if the employee can prove that the employer was not prejudiced by failure to receive the written notice.  One way to prove this is to prove that the employer actually knew about the accident.  This is not a difficult thing to prove if a supervisor actually witnessed the accident.  But even if the employer did not witness the accident, it is still possible to prove that the employer was not prejudiced because they did not get written notice.  In a recent case, Sell v. Ozarks Medical Center, the Southern District Court of Appeals found that an employee who delivered a doctors' note to his supervisor the day after the accident informed his employer of the injury.  This shifted the burden to the employer to show that the lack of written notice hampered the employer in its ability to investigate the accident, or to show that the employer was denied the opportunity to minimize the employee's injuries.  The employer in the Sell case was unable to show that it was prejudiced and thus, the employee was able to maintain the claim even without having given written notice within 30 days of the injury.

The moral of the story is this---do not let your employer tell you that you cannot file a workers' compensation claim because you did not give written notice within 30 days of the injury.  You may very well be able to show that the employer was not prejudiced by your failure to give the technical written notice. 

Of course, if you want to avoid this battle in the future, if you suffer a work accident in Missouri in the future, make it a point to give your employer written notice of the time, place and nature of the injury. ]]> http://www.bollwerktatlow.com/blog/failure%2Dto%2Dfile%2Dwritten%2Dreport%2Dof%2Dwork%2Dinjury%2Dis%2Dnot%2Dalways%2Dfatal%2Dto%2Dyour%2Dclaim%2Ecfm www.bollwerktatlow.com-66419 Mon, 10 Oct 2011 08:00:00 GMT It is important to hire an attorney that is experienced in ERISA law at the earliest possible stage of your case. In disability claims, life insurance claims or accidental death claims major insurance companies and employers may tell you that you don't need to hire an attorney because they will obtain your records, review the evidence and rule on it and that you don't need to pay an attorney. However, what they may not tell you can ruin your chances of a recovery when the insurance company or employer denies your claim. Once your claim has been denied and you have gone through all of your rights of appeal, your only chance of getting your claim paid is a Federal Court Lawsuit. You do not have the right to a jury trial (or a trial by a Judge in most cases) in an ERISA case and in the majority of cases you do not even have the right to testify in court. You very often can not introduce any evidence into court that was not submitted to the insurance company or to the claim's examiner when they handled your claim. If the insurance company or employer did not obtain your medical records that show your injuries, your disability, your surgery, or things like the pain management treatment that you have received, it may be too late to introduce any of this evidence in court, if your claim is denied.

Phil Tatlow of Bollwerk & Tatlow explains why it is important to hire an ERISA attorney early in the proceedings. "An attorney that is knowledgeable in Federal, ERISA law is crucial to consult with on a complex, disability, life or accidental death claim. Many attorneys that do personal injury or worker's compensation cases simply don't understand the complex, federal statutes and laws that apply to these cases. I have been handling these cases for over 15 years and I like to obtain all of my client's medical records and a complete history of his/her conditions for his/her entire lifetime. Many times the client finds me when a prior client or attorney refers them to me. I tell the client or attorney that there are strict guidelines in ERISA to be met and that we have to submit all the evidence during the administrative procedure and appeals process to build the record before we get to court. Otherwise, the Federal Judges will not allow us to present any new evidence that was not presented to the Appeals Committee as part of the appeal."
Phil Tatlow continued, "I have reviewed several cases where the insurance company tells the client that the company will obtain all of the client's medical records and doesn't obtain any useful records.  In these cases, when the clients are on the final appeals of the denial of the claims, the insurance company has denied the claims due to a lack of evidence to prove the claims. If the clients had hired an experienced ERISA attorney early in the proceedings the outcome would have been much different. Submission of medical opinions and vocational opinions and evidence of my client's disability or evidence of the cause of death in life and accidental death cases must be done before the claim is denied, or it is inadmissible in Court."

]]> http://www.bollwerktatlow.com/blog/hiring%2Dan%2Derisa%2Dattorney%2Dat%2Dthe%2Dearliest%2Dpossible%2Dstage%2Dof%2Dthe%2Dproceedings%2Ecfm www.bollwerktatlow.com-66167 Wed, 05 Oct 2011 08:00:00 GMT http://www.bollwerktatlow.com/blog/phil%2Dtatlow%2Dobtains%2Dpolicy%2Dlimits%2Don%2Derisa%2Dlife%2Dinsurance%2Dcase%2Dthat%2Dwas%2D10%2Dyears%2Dpast%2Dstatute%2Dof%2Ecfm www.bollwerktatlow.com-62640 Fri, 19 Aug 2011 08:00:00 GMT http://www.bollwerktatlow.com/blog/hot%2Dcofee%2Dpremieres%2Don%2Dhbo%2Dand%2Dsheds%2Dlight%2Don%2Dthe%2Dtort%2Dreform%2Dmovement%2Ecfm www.bollwerktatlow.com-58650 Sun, 03 Jul 2011 08:00:00 GMT