On March 1, 2012, a Hamilton County jury returned a verdict of $40,651.78 in Circuit Court in favor of Plaintiffs, Phyllis and Rick Bradley. Phyllis had been struck in the head by a falling stroller at the Toys R Us store on Highway 153 in Chattanooga on September 2, 2008. Toy R Us admitted liablity but contested the nature and extent of injury. She suffered from head pain and burning on her head, with electrical like zaps. The medical term for these conditions is posttraumatic injury to the nerve, scalp region which is resulting in the abnormal dysesthesias, paresthesias, with characteristics of complex regional pain syndrome, according to Dr. David Rankine. Hu Hamilton and Patrick Cruise represented the Plaintiffs in Phyllis A. Bradley and Richard Bradley v. Toys “R” Us – Delaware, Inc. 09C957.
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The Omnibus Transportation Employee Testing Act of 1991 requires drug and alcohol testing of safety-sensitive transportation employees in aviation, trucking, railroads, mass transit, pipelines, and other transportation industries. Mandatory drug testing is required for five specific categories of drugs (referred to as the SAMHSA 5, previously called the NIDA-5):
1. Cannabinoids (marijuana, hash)
2. Cocaine (cocaine, crack, benzoylecognine)
3. Amphetamines (amphetamines, methamphetamines, speed)
4. Opiates (heroin, opium, codeine, morphine)
5. Phencyclidine (PCP)
There is an emerging trend with some of the more safety orriented trucking companies like JB Hunt, Schneider, C.R. England, Roehl Transport, Gordon Trucking, that have replaced the DOT required urine test with the radioimmuneassay of hair (RIAH) test, commonly known as hair testing.
Hair testing is more expensive, so why are some companies using it? Hair testing reveals 12 times more positive tests, or failures, than urine testing. Experts report that illegal drugs can be detected in hair for upwards of 90 days. Not only does hair testing give a longer window of detection, detecting drug users who abstain for a short period of time, but there is an inability to tamper with the test, unlike mandatory urine testing. Currently, there are no known adulterants for hair tests. Since hair tests analyze the drugs inside the hairshaft, external contaminants/chemicals have no effect.
The small percentage of carriers utilizing hair testing are more readily and accurately identifying illegal drug users. In the long run, they are probably saving millions of dollars and keeping drug users out of their trucks, thereby reducing the number of catastrophic wrecks on our highways.
TCA 50-6-204(g)(2)(B) allows a Department of Labor Specialist to award attorney fees on post-settlement/judgment medical issues under the Tennessee Workers’ Compensation Act. Last month, the Davidson County Chancery Court found that judicial review of such awards, provided for by TCA 50-6-204(g)(2)(D)(ii), violates Due Process, and is therefore void. The ramification of this decision is to essentially strip the Department of Labor of the ability to dispose of post-settlement/judgment medical issues in workers’ compensation cases. Workers’ compensation practitioners would be wise to avoid using the TNDOL process to handle post-settlement/judgment medical issues.
Quite often, a major issue in workers’ compensation cases is causation. A good example is the case of Bright v. Shoun Trucking Co., where the truck driver claimed injuries to his shoulders and wrists as the result of the upper extremity position requirements of driving a tractor trailer. In the Bright case, the trial court ruled in favor of the employee, and the ruling was affirmed on appeal.
So called “idiopathic” injuries can be problematic in the workers’ compensation context. For example, in Veller v. Wackenhut Services, Inc., a workers’ compensation panel denied coverage for an employee who suffered a knee injury while standing and reaching for paperwork located on a shelf near his work station. If you are hurt on the job, you may encounter a denial of your claim based upon the “idiopathic” injury defense. It is important to contact an attorney to ensure that your rights are protected.
Over the next few weeks, we will provide a short summary of the some of the important Tennessee workers’ compensation cases that were issued last year. We will begin with a Tennessee Supreme Court case addressing “scope” of employment. In Dixon v. Travelers Indemnity Col, 336 S.W.3d 532 (Tenn. 2011), the employee was a truck driver that was injured as the result of a tornado. The Court held the injuries sustained as a result of the tornado were compensable because his job as a truck driver placed him at a higher risk of injury from a tornado than the general public.
The Hamilton Firm routinely represents injured truck drivers, with extensive experience representing employees of Covenant Transport and US Xpress. If you are a truck driver and have been injured on the job, feel free to contact our office.
In Deso v. Astrue, 2011 U.S. Dist. Lexis 137646 (D.Vt. Nov. 29, 2011), the district court held that “it was legal error for the ALJ to base his negative credibility determination primarily on failure to stop smoking. . . .” The District Court relied upon a 7th Circuit decision in stating: “This is an unreliable basis on which to rest a credibility determination.”
If you are disabled due to COPD and you would like to talk to a Georgia and/or Tennessee Disability Lawyer, contact Patrick Cruise at The Hamilton Firm.
Lawyers in all states, including Tennessee and Georgia, are governed by a set of rules regarding conduct, ethics, and professionalism. Subject to certain specific exceptions, it is generally inappropriate for a lawyer to “solicit” business from “specifically identified persons.” In other words, the client is supposed to choose a lawyer, instead of the lawyer choosing the client. Nevertheless, a very small number of lawyers obtain police accident reports in an attempt to identify individuals injured in car wrecks. Once those individuals are identified, a letter from the law firm is sent to the accident victim in an attempt to obtain business. In Tennessee, the Rules of Professional Responsibility permit such communications if the lawyer has a familial or prior professional relationship. In all other cases, such communications (solicitation) shall not be sent until more than 30 days have passed since the accident or disaster occurred. If you are contacted by an attorney immediately after you have been injured in a wreck, it is possible that you are being improperly solicited by a lawyer that is disregarding the rules of professionalism that govern lawyers. Do you want that law firm representing you? Improper solicitation is an unsavory practice that should not be tolerated.
SSA, and in particular, the Office of Disability Adjudication and Review (ODAR) is implementing a new national policy: “the name of the judge will no longer be included in the notice of hearing.” In other words, advocates and claimants will not know the Judge (ALJ) deciding the claim until the day of the hearing. Such a policy was intended to stop advocates from “judge shopping”, but the consequences could be substantial. Most advocates craft the presentation and Brief differently depending upon the particular likes and dislikes of the ALJ handling the claim.
For more information on Disability claims, check out our Tennessee and Georgia Disability Blog.
New hours of service regulations for truck drivers have failed to reverse the 2003 change by the Bush administration increasing to 11 hours the time drivers can be behind the wheel each day. The new rules by the Federa Motor Carrier Safety Administration, 49 CFR §395.3, offer some improvements, including a shorter work week and a required 30-minute rest break after eight hours on duty. For nearly 70 years, the limit had been 10 hours, until the 2003 change.
“It’s no secret that truckers often drive when they’re tired. In a 2005 survey the agency commissioned, 65% of truckers reported they sometimes or often felt drowsy while driving. And nearly 48% said they had actually fallen asleep while driving during the previous year. Putting weary drivers behind the wheels of 40-ton rigs hurtling down interstates is a formula for tragedy.”
The foregoing is a good quote from a commentary on the change, or lack thereof, appearing in USA Today, entitled, “New Transportation Rules Fall Short.” The full article can be viewed at:
The Final Rule on hours of service can be reviewed at http://www.fmcsa.dot.gov/documents/hos-final/HOS-Final-Rule.pdf