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We get this question a lot and not to sound like a lawyer but the short answer is: “It depends”.   Basically, you can’t re-open your case just because you are still having problems with your injury.   Also, just because your injury has gotten worse is not by itself grounds by itself to re-open your Tennessee Workers Compensation Case.  It is important to note, however, that if your injury is exacerbated at work you may have an entirely new work comp case so be sure to report it.   Regardless, this brings us to the factor that will often let you reopen your work comp claim.  Specifically, you can often reopen the case if through no fault of your own you lose your job after a workers compensation settlement.  This  is known as reconsideration. Here is how it works.  Under the Tennessee Workers Compensation act, if you were injured prior to July 1, 2014 and are returned to work at the same or greater rate of pay then your recovery was limited.  This provision was put in the act to give employers incentive to bring the injured employee back to work.  It can be good for both parties.  On the one hand the employee will have a job and on the other hand the employer can save some money.  To protect the employee the legislature also put an escape clause which provides that if you lose your job through no fault of your own then you can reopen you case and get the full benefits.  This may include losing your job because of lay offs or if you quit your job because you injury prevents you from continuing.  This doesn’t include your quitting to get a better job or if you are guilty of misconduct like cursing your boss out.  I recently did a show on this topic which you can watch below:

This brings us to our next important factor: TIME.  Like any Tennessee workers compensation case there are time limits.  Generally, you have between 200 weeks to 400 weeks from the date that you returned to work until the day you loose your job for a reconsideration to be available.  This time limit is dependent on whether the original injury was to a scheduled member (i.e. leg, arm) or to the body as a whole (i.e. shoulder or back).  If it was a scheduled member you have the reconsideration right for 200 weeks but if it was a whole body injury then you have the right to reconsider for 400 weeks from the day your returned to work.  Next, after you lose your job you have one your to file your claim or you are out of luck.  Unfortunately, we see a lot of people that get caught by this because they just did not know they had a right to re-open the case.

As in any State, Tennessee performs regular inspections of nursing homes. Some inspections reveal properly run nursing homes but on the other hand some reveal nursing homes with persistent neglect issues. Currently running through our Tennessee legislature is a bill that will protected these bad nursing homes. Specifically, the bill would prevent victims of nursing home neglect from showing the jury the results of prior inspections. The party for this bill argues that prior inspection and investigation information that details violations of state and federal regulations would unfairly influence the facility that is facing a lawsuit in a single case. They think that a case should focus on the specific underlying incident and those facts. They feel it would be unjust or unfair to site evidence of another wrongdoing, violation, or past problems. However, the real impact of the bill is that it will protect bad nursing homes not the good ones. For instance, there may be home that has been cited multiple times for neglecting patients and a jury will never know. Without this information the bad nursing homes can disguise their repeated failures as a onetime accident. So how does this law ensure better care for our most vulnerable Tennessee residents? It doesn’t. It is simply a product of nursing homes protecting their financial interest.

The party against the proposed bill also thinks that past negative violations and results of laws and regulations already put the responsibility on nursing homes to comply with the law and work to improve their quality of care for their residents. If there are more incidents of abuse or neglect that are the foundation of a lawsuit, if it is proven, would show that those nursing homes failed to meet their obligations. This is why opponents of this bill think that past violations are important as admissible evidence in order to determine if nursing home facilities are complying with the law. They think that past violations are relevant to new alleged ones.

The Higgins Firm is pleased to announce that Carrie LaBrec has joined the firm. LaBrec will focus her practice in the Serious Injury and Wrongful Death Litigation section of The Higgins Firm. In this role, LaBrec will aggressively prosecute client cases related to nursing home abuse and catastrophic automobile accidents cases.

“Throughout her career, Carrie has been a vigorous advocate for her clients,” said Jim Higgins, managing partner of The Higgins Firm. “Our clients will benefit from her broad understanding of the law mixed with a critical and significant hands-on trial practice.”

LaBrec gained extensive trial experience as a Metro Nashville Assistant Public Defender from 2007 through 2011. During this time, LaBrec represented clients in numerous courtroom proceedings at Criminal Court and General Sessions levels.

After a quick 12 years on 3rd and Broadway we have moved on down the road. Although, the move is only about one mile from our old office we have little more space and most importantly WE NOW HAVE PARKING. As we all know, parking in Nashville is no longer easy to find nor is it cheap. Regardless, we did leave a lot of good memories in our old building. It was a place where clients became friends and we watched a city grow around us. We hope that the new owners will enjoy the space as much as we did. In fact, if you are near our old building it is now a Goo Goo store so drop in and grab you one.

Our new building is located at 525 4th Ave South so if you are in the neighborhood be sure to drop by and see us.

Four hundred and forty thousand people die every year from preventable medical errors. According to the Journal of Patient Safety, this figure is up from 98,000 deaths since 1999, making preventable medical errors the third leading cause of death in the United States. Furthermore, research suggests that one in three patients admitted to the hospital will experience some medical error during their stay and such errors will cost the United States tens of billions of dollars each year. Unfortunately, however, earlier this year the Centers for Medicare and Medicaid Services discreetly stopped reporting this information.

Sometime during the middle of 2014 the Centers for Medicare and Medicaid Services stopped releasing information related to the occurrence of medical errors at heath care facilities, which they call “hospital-acquired conditions.” These conditions include such things as leaving a sponge or other foreign object inside a patient’s body and giving a patient the wrong blood type. Patients used to be able to access this information on the CMS Hospital Compare webpage.

Fortunately for patients, federal regulators will reverse their decision and once again provide the information to the public. According to CMS spokeman Aaron Albright, “We are working to make it available as a public-use file for researchers and others who are interested in the data. It’s been requested, so we will make it available.” This is good news for those who might be getting elective surgery, for example, as they can better assess different hospitals in order to find the best fit.
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The decision to move a loved one into a nursing home or assisted living facility can be a complicated and emotional one. Many factors go into making such a decision, and typically people are in a fragile state of mind when it comes time to actually do so. Unfortunately, this is also the time when nursing homes can try to take advantage of you by having you sign important legal documents, such as arbitration agreements, while concealing it as part of the normal admissions process.

Arbitration is a form of alternative dispute resolution whereby legal disputes are resolved outside of the court system. In arbitration, the two parties to the dispute choose a neutral third-party to hear the case and determine the outcome. Each side presents evidence and testimony, and the arbiter ultimately makes a ruling on the case. The decision of the arbiter is final and binding. Much of the process of arbitration proceeds just as a normal trial would; however, there is one significant difference. By agreeing to arbitration you waive your right to a jury trial. And because juries are typically more sympathetic to an injured patient than arbiters, monetary awards are often dramatically lower than those awarded by juries. This is not something that nursing home administrators inform patients of before they have them sign such agreements.

Nonetheless arbitration agreements are continually being slipped into the long list of forms presented to patients before they receive any treatment and regarded as just another part of the standard admissions process. Unfortunately, due to the typically dire circumstances attendant with admission to a nursing home, patients and their loved ones do not possess the requisite time or mental state to fully understand what they are signing. Thus, legal battles over the legality of arbitration agreements ensue.

Fortunately for the patients, there are a number of legal arguments which, if successful, will prevent the enforcement of these agreements. The first is the issue of unconscionability. If the court deems the agreement unconscionable, it means that the contract does not “conform to the dictates of conscience.” In other words, the agreement is so unreasonably unfair that the court will refuse to enforce it.

Another avenue of defense is the concept of “authority to sign.” Not just anyone is allowed to sign a contract on behalf of another person. However, nursing homes routinely have whoever accompanies the resident to the facility sign the paperwork, regardless of their relationship to the patient. This type of signature is not valid. Only a person specifically designated to make decisions regarding another’s legal choices can validly sign an arbitration agreement waiving the other’s right to a jury trial. Importantly, a person designated to make health care decisions of behalf of another is not also automatically empowered with the right to make decisions regarding arbitration. Seven state supreme courts agree that the decision to arbitrate is not a health care decision. Unfortunately, this has not stopped nursing home facilities from fighting to enforce their invalid agreements at the expense of the rights of their residents.
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News of the massive airbag recall is making waves across the automotive industry this week as new estimates suggest that over 7.8 million vehicles are potentially affected in the United States alone. Recent reports indicate that four people have been killed and over one hundred and thirty nine have been injured due to the defective Takata airbags.

The Japanese airbags in question contain a metal canister filled with chemical propellant that, when the airbag is deployed, can explode. The propellant causes the canister to rupture, which in turn can cause shrapnel to discharge into the cabin of the vehicle at speeds of over one hundred miles per hour. Accordingly to the results of a recent investigation, Takata has allegedly known about the defective airbags since 2004, but declined to notify the National Highway Traffic Safety Administration (NHTSA) at the time. Takata has blamed the defect on, among other things, rust, faulty welds, and dropped chewing gum; however the Japanese supplier has not announced its final conclusion as to the cause of the defect.

The airbag recall was first announced in April 2013, when only six makes of vehicles were thought to be affected. Expanded recalls were announced in both July and October of this year. To date, eleven additional automakers have been added to the recall list. The following is a complete list of the make, model and year of all the affected vehicles:

Acura: undetermined number of potentially affected vehicles
2002 – 2003 CL 2002 – 2003 TL 2003 – 2006 MDX 2005 RL
BMW: 627,615 potentially affected vehicles
2000 – 2005 3 Series Sedan 2000 – 2006 3 Series Coupe 2000 – 2005 3 Series Sports Wagon 2000 – 2006 3 Series Convertible 2001 – 2006 M3 Coupe 2001 – 2006 M3 Convertible
Chrysler/Dodge: 371,309 potentially affected vehicles
2003 – 2008 Dodge Ram 1500 2005 – 2008 Dodge Ram 2500 2006 – 2008 Dodge Ram 3500 2006 – 2008 Dodge Ram 4500 2008 Dodge Ram 5500 2005 – 2008 Dodge Durango 2005 – 2008 Dodge Dakota 2005 – 2008 Chrysler 300 2007 – 2008 Chrysler Aspen
Ford: 58,669 potentially affected vehicles
2004 Ranger 2005 – 2006 GT 2005 – 2007 Mustang
General Motors: undetermined number of potentially affected vehicles
2003 – 2005 Pontiac Vibe 2005 Saab 9-2X
Honda: 5,051,364 potentially affected vehicles
2001 – 2007 Honda Accord 2001 – 2005 Honda Civic 2002 – 2006 Honda CR-V 2003 – 2011 Honda Element 2002 – 2004 Honda Odyssey 2003 – 2007 Honda Pilot 2006 Honda Ridgeline 2003 – 2006 Acura MDX 2002 – 2003 Acura TL/CL 2005 Acura RL
Infiniti: undetermined number of potentially affected vehicles
2001 – 2004 Infiniti I30/I35 2002 – 2003 Infiniti QX4 2003 – 2005 Infiniti FX35/FX45
Lexus: undetermined number of potentially affected vehicles
2002 – 2005 SC430
Mazda: 64,872 potentially affected vehicles
2003 – 2007 Mazda6 2006 – 2007 MazdaSpeed6 2004 – 2008 Mazda RX-8 2004 – 2005 MPV 2004 B-Series Truck
Mitsubishi: 11,985 potentially affected vehicles
2004 – 2005 Lancer 2006 – 2007 Raider
Nissan: 694,626 potentially affected vehicles
2001 – 2003 Nissan Maxima 2001 – 2004 Nissan Pathfinder 2002 – 2004 Nissan Sentra 2001 – 2004 Infiniti I30/I35 2002 – 2003 Infiniti QX4 2003 – 2005 Infiniti FX35/FX45
Pontiac: undetermined number of potentially affected vehicles
2003 – 2005 Vibe
Saab: undetermined number of potentially affected vehicles
2005 9-2X
Subaru: 17,516 potentially affected vehicles
2003 – 2005 Baja 2003 – 2005 Legacy 2003 – 2005 Outback 2004 – 2005 Impreza
Toyota: 877,000 potentially affected vehicles
2002 – 2005 Lexus SC 2002 – 2005 Toyota Corolla 2003 – 2005 Toyota Corolla Matrix 2002 – 2005 Toyota Sequoia 2003 – 2005 Toyota Tundra Continue Reading

The process of choosing a nursing home for your ill or aging family member is often times a difficult and time-consuming one. Everyone wants to ensure that their family member is well cared for physically as well as emotionally. Many people even spend months poring through brochures and informational booklets in an effort to find the best fit for their loved one. The Medicare star rating awarded to many nursing homes and assisted living facilities is frequently a determining factor in the search. People generally trust this rating and place a great deal of faith in the rating system. Unfortunately, Medicare’s ratings have been found to be awarded based on incomplete or inaccurate information.

The New York Times recently examined the Medicare rating system, which rates over 15,000 nursing homes across the country on a scale from one to five. Evidently, the ratings are based primarily on unverified, self-reported data. Of the three factors used to determine a ranking, only one-the results of annual health inspections-relies upon independent evaluation. The other two factors-staff levels and quality statistics-are self-reported by each nursing home and generally accepted at face value by Medicare.

Oddly, the ratings system does not account for several other important factors, such as quantity or severity of state fines, number of consumer complaints filed with state agencies, and the number of lawsuits filed against a facility. Each one of these factors, however, is potentially more significant than a nursing home’s staff levels or quality statistics. Thus, a five star Medicare rating could be misleading residents and their family members as to the true nature of the facility. As reported by the New York Times, “of more than 50 nursing homes on a federal watch list for quality, nearly two-thirds hold four- or five-star ratings for their staff levels and quality statistics,” which improves their overall rating. Consequently, a facility could inflate their staff numbers to earn a higher “staff level rating” in order to improve its overall score. The result is a number of nursing home facilities with excellent staffing numbers are being awarded overall score of four- and five-stars even though other serious issues exist at the facility.

While Medicare ratings can give some indication of a facility’s overall status, there are many other factors to consider when choosing a nursing home for you or your loved one. As previously stated, it is important to look into state fines and disciplinary actions as well as state consumer complaints. In addition, it is helpful to get a more personal feel for a facility by going to visit and interact with the staff members. That way you will better understand the quality of care being provided.
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When it comes time to start thinking about putting a loved one in a nursing home, people generally devote a great deal of time and effort to searching for the “best nursing home in town.” However, it might actually save some time to start by looking for the signs of a bad nursing home first. To that end, MSN recently published an article titled “5 Traits of the Worst Nursing Homes.” Looking for these so-called “red flags” might help you narrow down the list of potential nursing homes and possibly prevent unnecessary harm or hassle.

The first trait to look for is a history of violations at the facility. Nursing homes are regulated at both the federal and state government levels, and so records of their noncompliance with guidelines and other applicable rules are usually fairly easy to access. Doing a little background research should help you determine which facilities have a reputation for violating the rules. One resource to use is Medicare.gov. This website allows you to search by zip code and compare a number of different nursing homes in one area. U.S. News also runs a website that allows you to search for nursing homes across the entire country. Each facility is rated on a scale from one to five based upon the results of state health inspections, the amount of time nurses spend with resident, and overall quality of medical care. Other websites to check include ProPublica.com and SeniorAdvisor.com.

The second warning sign of a negligent nursing home is severe violations. It is important to note not only a facility’s record of violations, but also the severity of said violations. One violation for resident abuse is obviously much worse than four or five violations for cobwebs in the rafters or some similarly innocuous violation. Put the violations into perspective as much as possible.
Next, you should be aware of the rate of staff turnover. If a nursing home is constantly hiring and firing its employees, that should tip you off that things aren’t running smoothly. Look for facilities where the key employees and/or staff member have worked there for fifteen or twenty years. Additionally, if possible, try to observe employee/resident interactions to see if residents look comfortable and employees seem contented.

Fourth, consider the level of independence afforded to residents at each facility. It is actually beneficial to a nursing home resident’s health to have some level of freedom to make decisions about their own day to day life. Consider the following questions: are residents allowed to decorate their rooms? Are residents provided with activities to choose from? Are residents treated as adults and not talked down to? The answers to each of these questions could help you perceive how your loved one will be treated when you are not around.

Finally, trust you gut. If you feel uneasy or unsure about a particular nursing home, then it probably is not the best choice for you and your loved ones. Simple things like cleanliness of common areas and appearance of staff members can be indicative of a facility’s overall standard of care. Don’t discount your first impressions of a facility-trust your instincts.
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After last night’s election, it is clear that the efforts of the out-of-state group that was attempting to oust three Tennessee Supreme Court justices have failed despite the group’s aggressive campaign. Tennesseans did in fact vote to retain Chief Justice Gary Wade, Justice Cornelia “Connie” Clark, as well as Justice Sharon Lee. However, according to recent polling numbers, the justices only secured roughly fifty seven percent (57%) of the votes, which is one of the smallest margins of victory in the history of Tennessee’s retention elections. While a victory nonetheless, last night’s election has drawn attention to a serious issue facing Tennessee’s courts-the role of politics in our judicial system.

Tennessee Lt. Gov. Ron Ramsey was one of the most vocal supporters of the effort to remove the Supreme Court justices, but he wasn’t alone. The movement had a significant number of financial backers. Ostensibly the group’s supporters wanted to oust the justices because they are “liberal,” “soft on crime,” and “supporters of Obamacare.” However, it appears that Ramsey and other group members were merely trying to get rid of current court members in order to have successors appointed who would be more sympathetic to their causes.

A prime example is that of National HealthCare Corp. (NHC). NHC owns and operates a number of nursing home facilities across our state and was one of the group’s backers. NHC donated $25,000 in June alone. Interestingly, NHC is a frequent fixture in Tennessee’s civil courts, as it must defend the many abuse and neglect lawsuits filed against it each year. Needless to say, our courts do not always rule in their favor, and the corporation has a clear motive to shake up the make-up of the high court.