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Determining If Your Injury is Work-Related, Part One

Determining If Your Injury is Work Related Part OneUnder New Jersey law, you must meet two requirements to successfully recover workers’ compensation benefits in New Jersey: you must demonstrate that you were injured and that the injury occurred during the performance of normal duties of the job. Often, it’s not an issue. For example, if you are hurt when a machine malfunctioned at work or you slipped and fell while doing your job, if you can show injury resulting from repetitive stress or motion at work, or an illness caused by exposure to a toxic substance that led to an illness, you should qualify for benefits. But there are times when you’re hurt at a work-related function or while on the premises of your employer where the answer may not be so clear.

Injuries Suffered While on a Break

There are laws that require your employer to allow you to take periodic breaks, including meal breaks. What happens if you slip on the floor at the company cafeteria? Is it any different if you fall and hurt yourself at while at an offsite restaurant? Not surprisingly, “it depends.”

If you choose to leave your place of employment to get something to eat, any injuries you suffer on the way to, from or at the restaurant will generally not be covered under a workers’ compensation claim. However, if you were getting food for a company luncheon or your boss asked you to pick him up some lunch, you may successfully argue that you were on a work-related task when you were hurt.

If, on the other hand, the injury occurs at a dining facility on company property, you will probably have a valid workers’ compensation claim.

Injuries Suffered during Company-Related Travel

Injuries suffered on your drive to or from work are generally not covered, unless deviated from your normal route to perform some work-related task. For example, if your supervisor asks you to pick up donuts for the office, and you are hurt in a motor vehicle accident while on your way to or from the donut shop, you may have a claim.

If you are on a business trip and suffer an injury, you will probably be able to recover workers’ compensation, unless your employer can show that the activity you were engaged in had nothing to do with work or the trip. For example, if you are injured in a brawl at a nightclub while on a business trip, your employer will probably be able to successfully argue that you were involved in a personal activity (unless you were entertaining clients at the time).

Contact the Law Offices of Gregg A. Wisotsky

I offer a free phone consultation to every prospective client. For a complimentary evaluation of your case, contact my office online or call me at 973-241-7468. I will come to your home or the hospital to meet with you, if necessary. All major credit cards are accepted.

Recovering Medical Costs after a Car Accident in New Jersey

after a Car Accident

In the aftermath of a motor vehicle accident, one of the first things you often worry about is how your medical bills will be paid. There are a couple ways this can be handled in New Jersey, depending on the type of automobile insurance policy you purchase.

In New Jersey, no-fault motor vehicle insurance is optional. If you choose no-fault coverage, you look to your own insurance provider to recover for any losses suffered in a collision. Your insurer will typically seek reimbursement of any amounts paid out from the at-fault party’s insurer, under a legal proceeding known as subrogation. But your insurer will reimburse you for all medical and other losses related to the accident.

But in New Jersey, though, unlike many other states with no-fault laws, you have the choice—you can select no-fault coverage or you can obtain a "traditional" policy of automobile insurance. If you opt for the traditional policy, you still have the right to sue the other party or the other party’s insurance provider directly.

In addition, there’s a provision in the New Jersey law that permits an injured motorist to file a personal injury claim directly against an at-fault driver or that driver’s insurance provider. If you can show that you suffered “serious injury” –defined under the statute to involve “dismemberment, significant disfigurement or scarring, displaced fractures, or the loss of a fetus—you will not be limited to pursuing a claim with your insurance carrier, but may file a civil lawsuit against the wrongdoer and/or his insurance company.

Contact Attorney Gregg A. Wisotsky

I offer a free phone consultation to every prospective client. For a complimentary evaluation of your case, contact my office online or call me at 973-241-7468. I will come to your home or the hospital to meet with you, if necessary. All major credit cards are accepted.

New Jersey Statute of Limitations on Personal Injury

Limitations on Personal Injury

When you’ve suffered injury because of someone else’s wrongful act, whether it’s the failure to perform according to the terms of a contract, or a lawsuit for injuries sustained in an accident, you have to file a claim for damages within a specific period of time or it will be barred. This rule, known as the statute of limitations, serves a number of purposes. It ensures that evidence doesn’t get lost and that witnesses don’t forget what they saw or heard. It also prevents a person from living for a long period of time with a potential claim hanging over his or her head.

The statute of limitations can vary from jurisdiction to jurisdiction and are typically different for various types of lawsuits. In New Jersey, the statute of limitations for personal injury—the time in which you must file your complaint— is "two years after the cause of any such action shall have accrued." The statute covers cases involving injury and/or death, although the clock for filing a claim for a wrongful death does not start until the actual date of death.

There are, however, situations where your injury may not be readily apparent, or where symptoms don’t become apparent for months or even years. What happens then?

New Jersey, like many other states, applies the discovery rule with respect to when the statute of limitations starts to run on a personal injury claim. Under that rule, the clock does not start to move on the statute of limitations until the injured party discovers, or by the exercise of reasonable diligence and intelligence should have discovered the injury. Accordingly, if your injury took some time to develop or was not apparent through reasonable observation, you will have two years from the date that you first became aware of the injury.

Contact My Office

I offer a free phone consultation to every prospective client. For a complimentary evaluation of your case, contact the Law Offices of Gregg A. Wisotsky online or call me at 973-241-7468. I will come to your home or the hospital to meet with you, if necessary. All major credit cards are accepted.

The Most Dangerous Products on the Market

Dangerous Products

The U.S. Consumer Product Safety Commission annually reports on those items that cause the most injury. Here are a few of the most dangerous products on the market, items that could get you killed or seriously injured.

  • Playground equipment—The Centers for Disease Control report that nearly 250,000 people (mostly children) suffer some type of injury on swings, slides and other playground equipment every year, and more than10 die from their injuries.
  • Power tools—Approximately 200,000 people are hurt by power saws, nail guns and other power tools every year and more than 30 are killed.
  • Pools and hot tubs—More than 500 people die every year from drowning or other injuries sustained in a pool or hot tub. Officials say hypothermia is also a serious risk.
  • Household chemicals—Paint, fertilizer and cleaning products are the primary culprits here, causing an average of 66 deaths a year.
  • All-terrain vehicles—Nearly 200 people are killed on three and four wheelers every year, most of them under the age of 18.
  • Beds—Safety officials say that more than 400,000 people are hurt in bed-related accidents every year. An additional274 people die in bed-related accidents.

Rugs, carpet or other types of flooring—An astonishing number of people—nearly 1,000—die in accidents every year caused by dangerous or defective flooring. Almost a million are injured.

Contact Me

At the Law Offices of Gregg A. Wisotsky, I offer a free phone consultation to every prospective client. For a complimentary evaluation of your case, contact my office online or call me at 973-241-7468. I will come to your home or the hospital to meet with you, if necessary. All major credit cards are accepted.

Establishing Causation in a Personal Injury Action

Personal Injury Action

If you have been hurt because of the wrongful act of another person, you will most likely file a lawsuit alleging negligence. In a classic negligence action, one of the key elements that you must prove is “causation,” i.e., that the defendant’s breach of duty of care “caused” your injuries. Under the common law of negligence, two different types of causation have evolved-actual, or “but for” cause, and proximate cause. To successfully prosecute a personal injury claim, you must show the existence of both types of causation.

Actual (“But For”) Cause

Actual cause is pretty much as the name suggests – it asks the question “did the defendant’s negligence “actually” cause the accident and ensuing injury. In other words, if the defendant had not breached the duty of care, would the injured party have been hurt. If the answer is no, then you have established actual cause. For example, if a homeowner fails to repair a pothole in the sidewalk and you trip on the pothole, there’s actual cause for any injuries you suffer.

Proximate Cause

Proximate cause can be much more difficult to determine. Essentially, proximate cause looks at the specific injury and asks if it was reasonably foreseeable, based on the defendant’s actions. In the example above, let’s assume you tripped on the pothole and fell onto a wasp’s nest. The wasps swarmed out, traveled down the block and stung your neighbor 50 times. That neighbor went into anaphylactic shock and was hospitalized for two weeks, causing him to miss a trip to the Super Bowl, for which he’d already purchased tickets, at $2,000 per ticket. The neighbor would probably be unsuccessful in an attempt to recover the costs of the trip from you because there was no proximate cause.

Contact Me

At the Law Offices of Gregg A. Wisotsky, I offer a free phone consultation to every prospective client. For a complimentary evaluation of your case, contact my office online or call me at 973-241-7468. I will come to your home or the hospital to meet with you, if necessary. All major credit cards are accepted.

Watch Out for Products with Button Batteries

Button Batteries

When was the last time you put one of those big, clunky D-sized batteries in any kind of a product? Instead, you probably put a wafer or "button" battery in your remote control, camera, key fob, hearing aid or other product. But these batteries can pose a serious health risk, especially to children who may do what children do with lots of things—put them in their mouths.

According to published reports, over 3,000 small children required emergency care last year after swallowing a button battery. Medical professionals warn that ingesting a battery of any kind can have serious consequences, from suffocation to choking, even causing death. Furthermore, because batteries carry an electrical current, they can cause a chemical reaction with liquids, including saliva, resulting in serious internal burns. The small batteries can also become lodged in a nasal passage or an ear.

Warning Signs that Your Child May Have Swallowed a Battery

Here are some telltale signs that your child has ingested a button battery:

  • Excessive drooling
  • Hoarseness
  • Vomiting, gagging or any difficulty swallowing
  • Complaints of chest or abdominal pain
  • Sudden crying
  • Bloody saliva or stools

Doctors advise against giving your child anything to eat or drink if you suspect that the child has swallowed a battery. Don’t try the Heimlich, either—take the child to an emergency medical facility as soon as possible.

Contact the Law Offices of Gregg A. Wisotsky

I offer a free phone consultation to every prospective client. For a complimentary evaluation of your case, contact my office online or call me at 973-241-7468. I will come to your home or the hospital to meet with you, if necessary. All major credit cards are accepted.

The Standard of Care in a Negligence Lawsuit

negligence-action

When you suffer a needless injury because of the careless acts of another person, there are a number of different legal theories that may be used to pursue compensation for your losses. In most instances, however, your claim will be based on an allegation of “negligence.” Negligence is a legal term, with specific elements that must be proven in court:

  • You must show that the defendant breached an accepted “standard of care”
  • You must show a causal link between the defendant’s conduct and your injury
  • You must show that you suffered actual losses as a result of the accident

The Standard of Care

As the common law of negligence has evolved, the courts have established and reinforced the concept that everyone has a duty, in everything they do, to exercise a certain level of care. Whether you are behind the wheel of a motor vehicle, maintaining steps or stairs, designing or operating a power tool, or manufacturing a consumer product, it is expected that you will exercise a certain minimal level of care, so as not to pose an unreasonable risk to others. The standard in New Jersey, as in other states, is fairly general – you must act as a “reasonable person” would.

Some states have narrowed that definition a little, holding that a reasonable person is an “average person of ordinary prudence.” The ultimate determination of whether a defendant breached a duty of care rests with the jury, though. Juries are tasked with determining the facts in a case, and whether or not the defendant acted reasonably is considered an issue of fact.

Click here to learn about causation in a personal injury lawsuit.

Contact the Law Offices of Gregg A. Wisotsky

I offer a free phone consultation to every prospective client. For a complimentary evaluation of your case, contact my office online or call me at 973-241-7468. I will come to your home or the hospital to meet with you, if necessary. All major credit cards are accepted.

The Common Types of Construction Site Injuries

Construction-Site-Accidents

Though the common perception is that medical errors are few and far between, recent studies seem to indicate otherwise. One report found that nearly every American will receive an incorrect diagnosis at some point in their lives. Medical industry watchdogs say the factors that most often contribute to misdiagnosis or failure to diagnose are:

  • Negligence or carelessness caused by fatigue or understaffing
  • Miscommunication between doctors, nurses and  patients
  • An unwillingness by doctors to acknowledge or discuss errors that are made

Far too often, according to much research, doctors and nurses don’t include the patient in critical discussions, and make diagnostic assessments without gathering adequate information from the patient. They stress the need to talk directly to the patient and learn about symptoms, rather than simply relying on medical tests.

Critics also point to what they call a “culture of silence” among medical professionals—the idea that, when mistakes are made, they cannot be discussed. They say that just the opposite approach is necessary—that the best way to learn from mistakes is to fully discuss them, so that others don’t end up making the same errors.

The studies have not been limited to misdiagnoses, though. One report found that in one of every 10,000 surgeries, some tool or product is wrongfully left in a body cavity, and that surgeons perform the wrong surgery or operate on the wrong body part in one of every 100,000 cases. Critics say the reasons for such errors mirror those for misdiagnosis—poor communication, overworked doctors and a "hush-hush" atmosphere about mistakes.

Contact Attorney Gregg A. Wisotsky

I offer a free phone consultation to every prospective client. For a complimentary evaluation of your case, contact my office online or call me at 973-241-7468. I will come to your home or the hospital to meet with you, if necessary. All major credit cards are accepted.

Rise in Highway Death Toll Tied to Cheap Gas

wrongful-death

In the aftermath of the accidental or wrongful death of a loved one, it can be difficult to even think about a lawsuit to recover damages. While nothing can bring your loved one back, you are entitled to hold those responsible accountable for your losses. But what can you recover and how are your losses calculated?

In a wrongful death lawsuit, the damages (compensation for losses) are generally one of three types:

  • Economic losses—those which represent tangible or out-of pocket losses
  • Non-economic losses—those that are less tangible
  • Punitive damages—losses designed to punish the wrongdoer or send a message to others

Economic Losses

You are entitled to recover compensation for any actual expenses incurred as a result of the accident, or any benefits you would have received, had your loved one not died. This may include:

  • Lost wages or income of a parent, spouse or guardian
  • Lost benefits, such as medical insurance or pension/retirement benefits
  • The diminished value of an inheritance because of the wrongful death
  • Any medical expenses you or your loved one’s estate had to pay for medical care as a result of the accident, but before death
  • Funeral and burial expenses
  • The value of any other services the deceased would have provided

Non-Economic Losses

These types of damages represent less tangible injuries, such as:

  • Any emotional pain or suffering you experienced because of the death of your loved one
  • Loss of companionship or consortium with a spouse
  • Loss of the care, guidance, nurturing, protection or training of a parent or guardian
  • Loss of the love or society of a family member

Punitive Damages

It’s extremely difficult to get punitive damages in a personal injury or wrongful death case, unless you can show that the defendant acted with reckless disregard for the safety of others or of the value of human life.

Contact My Office

I offer a free phone consultation to every prospective client. For a complimentary evaluation of your case, contact the Law Offices of Gregg A. Wisotsky online or call me at 973-241-7468. I will come to your home or the hospital to meet with you, if necessary. All major credit cards are accepted.

Dangerous and Defective Product Claims

Dangerous-Product

From the founding of America, the legal principle of contributory negligence, carried over from English common law, has been applied to personal injury claims. Under the concept, if a person suffering a personal injury was in any way negligent or careless, and thereby contributed to his or her own injury, that fact could be used to complete bar or eliminate any recovery for the injury suffered.

Because of perceptions that the doctrine of contributory negligence was too harsh, and because of the successful efforts of many defense lawyer to find some level of contributory negligence in nearly every personal injury claim, the law has been modified in every state by the new principle of comparative, rather than contributory, negligence.

Under the doctrine of comparative negligence, the finder of fact in a personal injury case (the judge or the jury) must first determine the full amount of damages sustained by an injured party. The judge/jury must then determine if the injured party was negligent in any way and, if so, to what extent.

At that point, the various states take one of two approaches. In many states, the percentage by which the injured party was at fault is simply applied to the total amount of losses, thereby reducing the damage award. For example, if an injured party shows $1 million in losses, but the jury finds that he or she was 25% responsible, the award will be reduced to $750,000. If the plaintiff (the injured party) was found to be 75% responsible, he or she will still receive $250,000.

In states such as New Jersey, however, which have adopted what is known as “modified comparative negligence,” an injured party can only receive a damage award if his or her degree of fault falls below a certain level, typically 50% (the standard in New Jersey). Accordingly, in the above example, if the plaintiff is found to be 51% responsible, there will be no damage award.

Contact Me

At the Law Offices of Gregg A. Wisotsky, I offer a free phone consultation to every prospective client. For a complimentary evaluation of your case, contact my office online or call me at 973-241-7468. I will come to your home or the hospital to meet with you, if necessary. All major credit cards are accepted.

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