There are millions of motor vehicle traffic accidents every year, and the number of accidents continues to increase. These crashes can result in fatalities, injuries, and property damage. Not only do car crashes cause injuries and property damage, they often result in psychological harm. People who have been involved in an accident have an increased risk of developing Posttraumatic Stress Disorder (PTSD). Studies have found that about 25-33% of motor vehicle accident survivors develop PTSD after their crash. This means that millions of people in the United States may be suffering from PTSD related to an accident. PTSD after a car crash is very common. If you may be suffering from PTSD after an automobile accident and have questions about your legal options, contact an experienced car crash attorney now.

What is PTSD and what are the symptoms of PTSD after a car crash?

PTSD is a serious psychological condition, and it can occur after a traumatic event. Traumatic events usually involve the threat of death, actual or serious injury to yourself or the threat of death or physical injury to someone else.

The symptoms of PTSD after a car crash can include:

• Having intrusive and troubling thoughts about the accident;
• Having disturbing dreams about the accident;
• Avoiding scenarios related to the accident, including a reluctance to drive, or staying away from the scene of the accident;
• Experiencing a numbing of emotional responses, including feeling fewer emotions or feeling detached from your emotions; and
• Feeling increased physical sensations, such as irritability, tension, anxiety and, inability to sleep.

While many car crash survivors have an emotional reaction to the accident, PTSD is a more extreme condition than feelings of sadness or stress. It is not only emotionally difficult, PTSD can be physically debilitating as well. It can affect a person’s ability to perform job functions as well as everyday tasks.

How common is PTSD after a car Crash and is it related to other problems?

PTSD occurs in about a third of car crash victims. It appears that some people are more likely to develop PTSD after a serious car crash than others. The following factors can increase your likelihood of experiencing PTSD after an accident:

• Prior trauma, such as assault, rape, terrorism, other car accidents, and natural disasters
• Working as a first responder and witnessing other traumatic events
• Underlying mental issues
• Believing your life was in danger from the accident
• Whether you or someone else was injured during the accident
• The availability of support after the accident

Car crash related PTSD is correlated to developing other physical and psychological issues. About half of those who are diagnosed with PTSD also experience major depression or another mood disorder at the same time. People who are suffering from PTSD as the result of a serious car accident are also more likely to experience anxiety and develop substance abuse disorders.

Additionally, two-thirds of people who suffer from car crash related PTSD experience chronic pain that is a result of their accident. It appears that people who suffer from a physical injury are more likely to develop PTSD after an accident. Physical injuries can significantly affect victim’s lifestyles and daily activities, and cause debilitating headaches and other pain. Thus, if you experienced from physical injuries as a result of the accident, you are more likely to develop PTSD after your accident.

What can I do to help my feelings of trauma after an accident?

While PTSD can be physically and mentally debilitating, there are steps you can take to feel better.

• Find a therapist to talk to about the accident. A counselor can provide a safe space for you to process the accident and the feelings it has caused in the aftermath.
• See your doctor. Because PTSD often occurs concurrently with chronic pain and other psychological issues, your doctor is a vital part of your recovery. He or she can provide appropriate medications and referrals to physical therapy or other specialists as appropriate.
• Return to your regular activities and routines. PTSD can cause you to avoid things you enjoy, and can contribute to you developing anxiety or depression. By doing what you can to enjoy life, you will be able to heal more quickly.

If you continue to struggle with PTSD, anxiety, and/or depression, you may notice that you are relying more on alcohol or drugs. If this is the case, make sure to reach out to your doctor for help.

What are my legal options?

PTSD can be incredibly disruptive to your life, both physically and mentally. It can affect your ability to perform your job, as well as your ability to enjoy your day-to-day life. The person who caused your accident can be held liable for your emotional trauma. An experienced car crash attorney can help you recover financial compensation for not only your medical bills, but also your emotional turmoil.

Reach out right away to schedule a consultation.

If you are a veteran facing criminal prosecution and jail time, you need to think about how your VA benefits may be affected in strategizing your case. If you are convicted of a crime and incarcerated, the Department of Veterans Affairs may be able to reduce or terminate your VA disability benefits. In order to plan the best strategy to avoid or lessen the impact of this possibility, consult with an experienced criminal defense attorney.

When will the VA Stop or Reduce my Benefits?

Criminal charges alone will not affect your VA disability benefits; however, a conviction for a serious crime might reduce them. If you are sentenced to jail or prison for less than 60 days, you are paroled before then, or you are sent to a work-release program or halfway house, your VA benefits will not be affected. You must be considered incarcerated for more than 60 days for your disability benefits to be changed.

If you are convicted of a felony and incarcerated for longer than 60 days, your disability benefits will be reduced or terminated on your 61st day in jail or prison. Your monthly payment will be reduced based on how you were rated for a service-connected disability: if you were rated at 10%, the payment will be halved, and if you were rated at 20% or higher, the payment will be reduced to 10% of the usual level. Once you are released, your monthly payment may be reinstated.

Veterans that receive VA pension will stop getting payments on the 61st day after being in jail. Once you are released from prison your pension payments may resume depending on the eligibility requirements from the VA.

Notify the Department of Veterans Affairs Regional Office as soon as you are incarcerated. If you fail to do so and continue to receive benefits, they will be considered an overpayment and result in you losing all further payments until you repay that amount.

Can my family access my VA benefits while I am incarcerated?

The VA may be able to apply the benefits you would have received had you not been incarcerated to your family through a process called “apportionment”. Your family can apply for apportionment to receive your pension while you are otherwise ineligible to receive it. It is important to know that this is not an automatic process. Your family must apply for it in order to claim your VA benefits. To do so, they should contact the nearest VA office. They will be asked to provide information including income and living expenses, and the VA will consider these along with the amount available for apportionment as well as any special needs. Make sure to keep the VA updated about your incarceration status if your benefits are being apportioned.

What happens to my VA education benefits if I am convicted of a crime?

You can still receive full educational benefits as long as you have not been incarcerated after conviction for a felony. If you have been convicted of a misdemeanor or gross misdemeanor, you can still receive the full monthly benefit, even while in jail. If you are convicted of a felony, you can only receive the full monthly benefit if you are living in a halfway house, or you are in a work-release program. If you are incarcerated for a felony, you can continue to receive some benefits, but only toward the costs of tuition, fees, and necessary books and supplies. However, the VA benefit cannot be paid if another program is covering these costs.

After my release, how do I resume my benefits?

You need to ensure that the VA has received official notification of your release from incarceration. You can enable this to go more quickly by bringing an official discharge paper or parole agreement to your VA Benefits Regional Office. If you have been out of prison but have not yet claimed your benefits, make sure to notify the VA within one year of your release. If you do so, you will be compensated for your VA benefits from the date of release. If you wait for more than a year, your benefits will start the date the VA was notified of your release.

If your conviction is overturned on appeal, the VA will provide you with a retroactive payment of your disability benefits. You must notify the VA once your conviction is overturned in order to receive the payment.

What are some considerations I should think about in pleading to a criminal charge?

If you are asked to plead guilty to a criminal charge in a way that will result in longer than 60 days of incarceration, your VA benefits will be affected. It is vital to work with an experienced criminal attorney to strategize ways to lessen the impact on your disability benefits. A criminal lawyer will help you determine the best approach to negotiating a plea agreement in terms of whether to bargain for felony versus misdemeanor charges, asking for work-release, parole eligibility, and more.

Does the criminal justice system have any resources for Veterans?

In some states, there are alternatives to the criminal justice system for veterans called Veterans’ Treatment Courts. These focus on providing rehabilitation and treatment rather than punishment for a crime. There are 334 of these courts in the United States, and they help connect veterans who are dealing with mental health issues, substance abuse, and trauma to resources. In Clark County, we have a Veterans Treatment Court available for those that qualify in Las Vegas, North Las Vegas, and Henderson. Make sure to tell your criminal defense attorney that you are a veteran to see if you are eligible to participate in this alternative.

Reach out today to schedule a consultation to discuss your criminal case and your options moving forward. Attorney Craig W. Drummond is a U.S. Army Veteran and former JAG Attorney who is particularly knowledgeable in how criminal charges can affect Veterans and U.S. Military members.

 

Our lead Attorney Craig Drummond recently appeared on Court TV as an expert commentator regarding the Las Vegas courts and his analysis of an upcoming trial.

 

If you are pursuing a personal injury settlement, there are a few things you need to make sure you understand about ERISA. Particularly how an ERISA lien may impact the amount of money you may receive from your personal injury claim.

What is ERISA and why do you need to be aware of it in a personal injury case?

ERISA – the Employee Retirement Income Security Act of 1974 – is a federal law that sets standards for most retirement and health care plans in private industry. ERISA’s goal is to provide protection for the individuals enrolled in the plans. It does so by requiring plans to provide participants with plan information and features, setting minimum standards for participation, establishing fiduciary responsibilities for those who control plan assets, and requiring the establishment of a grievance process for participants, among other things. While the goal of the legislation was to protect employees of companies and the money they contributed to plans via payroll, the companies have used the law to aid in collecting repayment for medical care in personal injury cases.

In a personal injury case, a plaintiff is often reimbursed for their medical expenses. However, if an ERISA health plan originally paid for medical care, existing law allows your health insurer to collect money recovered from the at-fault party, this is called an ERISA lien.

In the past, plaintiffs’ attorneys have argued that the amount of money spent on attorney’s fees should be subtracted from the amount of reimbursement the health plan receives. This would prevent the health plan from being unjustly enriched by being fully reimbursed and benefiting from the attorney’s work at the same time. However, the United States Supreme Court has held that self-funded employee benefits plans are not subject to state law. Thus, if a plan is self-funded, only federal law applies. FMC Corp. v. Holliday (1990) 498 U.S. 52. A recent United States Supreme Court decision, US Airways v. McCutchen (2013) 133 S. Ct. 1537, held that for reimbursement actions under self-funded ERISA plans, the ERISA plan’s terms govern and that equitable principles such as unjust enrichment will not override the language of the applicable contract. When the language of the contract does not specifically preclude or is silent as to a term, such as the allocation of attorney’s fees, equitable defenses are still available.

How do ERISA liens work in personal injury cases?

The key to whether a plan falls under these rulings is its funding status. Some plans are insured, whereas others are self-funded. Insured plans are usually used by smaller employers with fewer workers. In insured plans, employees pay their premiums to a health insurance company which subsequently pays their claims. These companies are subject to state law for health care liens and reimbursements. Most government employee plans are also insured.

Self-funded plans, on the other hand, are used by larger employers who collect premiums directly from their workers and pay for claims from their own funds. While the companies usually outsource the work, the pool of money used to pay claims is employee money. Health care liens under these plans are governed by federal law and ERISA. Thus, the single most important thing to determine before you start your personal injury settlement negotiation is whether your health care plan is insured or self-funded. If it is insured, you will not need to worry about an ERISA lien however, there may be a subrogation lien under state law. If it is self-funded, you will likely need to plan on paying some of your settlement back to the health insurance company for your medical plans due to an ERISA lien.

What should you think about in negotiating your personal injury settlement?

Hiring a good attorney knowledgeable in both personal injury law and ERISA liens will help ensure that you make well-informed decisions regarding your settlement. An experienced personal injury attorney who understands ERISA liens can analyze your health insurance plan to determine the funding status and whether the language of the contract specifically precludes equitable defenses.

The first step in preparing your ERISA lien defense is obtaining your insurance plan documents, including the Master Plan Document (MPD) and the Summary Plan Document (SPD). The MPD language controls when there are conflicting clauses, so it is vital to understand what each says. The MPD will also lay out the funding mechanism and recovery terms.

Your personal injury attorney will also help you review your medical bills to ensure that there were no overcharges or mistakes. They will also help you to reduce unreasonable charges and obtain credit for any money you have already paid for co-pays, deductibles, and co-insurance. This review and documentation will aid in reducing the amount of an ERISA lien.

Your attorney will use the knowledge of the potential ERISA lien in negotiating your personal injury settlement. Knowing that you may have to reimburse your self-funded health insurance plan for medical expenses covered is important when going into negotiations so that you’re not left with a smaller settlement than expected when a lien is paid back.

Finally, your personal injury attorney will be able to identify if there are any equitable defenses still available based on the contract language that will help reduce the amount of the lien. If the MPD is silent regarding issues of comparative fault, the made whole doctrine, and common fund defenses, you may be able to argue for a reduction in the expenses owed. Consulting with an experienced ERISA personal injury attorney will help you navigate the complicated waters of ERISA liens and facilitate getting you the best outcome possible.

Call the captain to reach out right away for a free case consultation.

Whether it’s signing up for a trail horseback ride, joining a gym, taking a scuba diving lesson, going skydiving, riding on an all-terrain vehicle, or jumping on a trampoline there are many activities that will require you to sign a release of liability waiver. Once you sign these liability waivers, you consent to take on the risk of the activity you wish to partake in. Essentially, you are signing a document that says you will not sue those in charge of the activity should you get injured while participating. A liability waiver means that YOU are assuming the risk of the activity. But what are the real legal effects of signing this document, and are liability waivers always upheld? Read on to learn more about the ins and outs of a release of liability waiver, as well as what will happen if you ever get hurt after signing one of these documents.

How Does a Liability Waiver Work?

Liability waivers are legal contracts that you are expected to read before signing. While liability waivers are legal contracts, not all liability waivers are created equal and not all are legally enforceable. The strength of a liability waiver largely depends on how well it is used in conjunction with negligence prevention by the company or organization asking you to sign it.

The following are the general rules of liability waivers:

1. The waiver should be clearly worded and unambiguous regarding the intent to relieve any and all legal liability, even regarding negligence.
2. The waiver should be prominent and not misleading through a fine print contract.
3. The waiver must be signed by the person it will be used against.

The Many Aliases of a Liability Waiver

Don’t be fooled when signing a release of liability waiver, these little documents go by a number of different names. The most common aliases of a liability waiver are:

• Indemnity agreement
• Release of liability
• Waiver
• Waiver of rights
• Waiver of liability
• Hold harmless agreement
• Assumption agreement
• Pre-injury release
• Exculpatory agreement
• Assumption of risk

Before signing any document labeled as such, understand that all of these types of documents essentially mean the same thing. Signing these types of documents is a way that a company will argue that YOU are assuming the risk of an activity and that you will not sue for any personal injuries sustained.

Should I Sign a Release of Liability Waiver?

If you want to participate in any activity that is associated with any type of risk, you will most likely be expected to sign a liability waiver. If you want to participate in the activity, most companies will not allow you to avoid signing the waiver. In many circumstances, there is nothing wrong with signing a liability waiver. However, always be sure to read the agreement carefully before giving your signature to know what exactly the activity or risk that you are waiving. The main purposes of a liability waiver are to document in writing that you have been warned about potential risks and that the company is attempting to remove their responsibility if you are injured during the activity.

Is a Release of Liability Waiver Always Upheld?

In the situation where you have signed a liability waiver and were injured, there are circumstances that could lead to the waiver not being upheld. These cases are often complex, and the assistance of an experienced personal injury attorney will be needed to navigate the case.

The Nevada Supreme Court has ruled that in order for a litigant to have assumed the risk, two requirements must be met. First, there must have been voluntary exposure to the danger. Second, there must have been actual knowledge of the risk assumed. See Sierra Pacific v. Anderson, 77 Nev. 68, 358 P.2d 892 (1961). Considerations should include but are not limited to, the following: the nature and extent of the injuries, the haste or lack thereof with which the release was obtained, and the understandings and expectations of the parties at the time of signing. See Renaud v. 200 Convention Center Ltd., 102 Nev. 500, 506, 728 P.2d 445, 441 (1986).

The following are the most common situations where a release of liability waiver would not be upheld:

1. Defective Products

In the case that you were injured due to defective products provided by the company or organizations that required you to sign a release of liability waiver, you may retain the ability to sue the manufacturer of the product under product liability. Nevada is a strict products liability case. In Nevada, the elements for a claim strict product liability are: 1) that the product was defective; 2) that the defect existed when the product left the defendant’s possession; 3) that the product was used in a manner that was reasonably foreseeable by the defendant; and 4) that the defect was a cause of the damage or injury to the plaintiff.

2. Gross Negligence

In the case that your injury is a result of gross negligence, such as extreme recklessness or complete disregard for safety, you may retain the right to sue even after signing a liability waiver.

3. Misrepresentation

In the case that the company or organization misrepresented their service or activity, you may be able to file a fraud case against them. In this situation, the liability waiver would not be upheld as the document was misleading in nature. Misrepresentation or concealment of important facts is one of the most common ways to void a liability waiver. For example, if you are going on an ATV ride and the company represents that their vehicles are well maintained and in excellent mechanical condition and it later turns out that you were injured because the brake pads were worn down to an unsafe point, you will be able to argue that the waiver should not be enforced because you were not waiving the risk of the vehicles being rented to you in an already unsafe condition.

Consult with an Experienced Personal Injury Attorney Today

While we hope you never find yourself in a situation where you have been injured after signing a release of liability waiver, we are here to help if the situation does arise. This can be a difficult situation to navigate alone. Working with an experienced personal injury attorney will be your best chance at reaching your desired outcome. Do not leave your personal injury case up to chance. Contact us today to schedule a consultation.

Court TV had our lead attorney, Craig Drummond, on their Court TV show regarding the upcoming trial of Kelsey Turner who is accused of murder.