Posted on Monday, June 15th, 2020 at 5:18 pm
Posted on Monday, June 15th, 2020 at 5:18 pm
Posted on Friday, June 5th, 2020 at 3:09 pm
As many unemployed homeowners and renters know, there has been a moratorium against filing foreclosure or eviction cases in court since the start of the COVID-19 pandemic lockdown. However, that prohibition is starting to end. Because Lawrence & Associates practices bankruptcy law in Kentucky and helps save about one hundred homes every year, we’ve been paying careful attention to the Kentucky court system to see how they are handling foreclosures and evictions. The Kentucky Supreme Court issued an order that partially reopened courthouses starting June 1, 2020. Buried in this order are directions to the Kentucky state courts on how to process foreclosure and eviction lawsuits. Knowing what the state courts are allowed to do is critical to saving your home or apartment.
It’s important to know that Kentucky is still under a “state of emergency” due to COVID-19 and that there is no set date that this will end. However, the Governor could end the state of emergency at any time, and we don’t know how much notice we’ll get when that happens. Governor Beshear could make an announcement that the state of emergency will end in a day, a week, or a month. The Kentucky Supreme Court order says that all evictions can resume when the state of emergency ends or on July 25, 2020, whichever comes first. Some evictions can begin before then, but generally only if they are on commercial property or if the eviction is for some reason other than non-payment of rent. The order goes on to say that “…nothing in this Order shall be interpreted to suspend or otherwise excuse an individual’s duty to pay rent….” In other words, if you aren’t paying rent now then you’re living on borrowed time. The backlog of unpaid rent is piling up, and you have a maximum of seven weeks before that bill comes due.
If you own your home and are behind on mortgage payments, the situation is even more dire. The order allows judicial sales to begin again, effective immediately. A judicial sale is when a mortgage company gets a foreclosure judgment against you and the Master Commissioner sells your house to the highest bidder. The day of the judicial sale, the buyer is allowed to enter the house and change any locks on the doors. The judicial sale is a point of no return. Northern Kentucky counties – particularly Boone County, Kenton County, and Campbell County – have already put out scheduling orders for when hearings will be held to schedule the Master Commissioner’s sale. Lawrence & Associates has one client whose hearing is as early as June 11, 2020. While the amount of time depends on the county you live in, it does seem like homeowners who are several months behind on a mortgage have even less than the seven weeks that renters have to get caught up or find another way to save their homes.
For homeowners, this answer is easy. If you’re behind on your mortgage and you can’t catch up, you file a Chapter 13 bankruptcy. The rules in Chapter 13 are simple. You have to make your regular, monthly mortgage payment directly to the mortgage company beginning when the next payment is due after the bankruptcy is filed. (So for example, if you pay on the first of every month and you file bankruptcy on June 15, you’d need to start regular monthly mortgage payments again on July 1.) The total unpaid arrearage on the mortgage goes into the bankruptcy and your monthly bankruptcy payment will pay it off in full. The mortgage company can’t charge interest on the arrearage in the bankruptcy, but they get to charge any late fees or attorneys fees that were applied before the bankruptcy was filed. Your normal interest rate applies to the rest of the mortgage. You can file this bankruptcy at any time before the Master Commissioner’s sale, but once that sale happens the bankruptcy can’t save the home anymore. But whatever you do, don’t wait until right before the sale happens. You have to come up with several hundred dollars and quite a few documents to file, and the average client takes around a month to get everything together. Even if you are faster than average, you might not find an attorney willing to turn it around for you in just a day or so. That kind of speed can lead to mistakes, and many of us have other clients already scheduled to file.
For renters, the answer is a little more complicated. Your safest bet is to file the bankruptcy before the eviction is ever filed in court. If you do that, you’ll still have to get caught up on your rent while the bankruptcy is in progress, but you are guaranteed the opportunity to do so. The landlord cannot file an eviction while the bankruptcy is proceeding. But if the landlord files the eviction in court first, the landlord has a unique power to negotiate an agreement over the rent arrearage rather than having an agreement forced on the landlord by the bankruptcy court. If you wait to file bankruptcy until after an eviction is already filed in court, the bankruptcy will stop the eviction action temporarily. But it’s not a given that the bankruptcy will automatically save you from eviction. Landlords have a lot more rights in bankruptcies than most other creditors. This means Kentucky renters who are behind on their rent should not wait until July 25, 2020 or the end of Kentucky state of emergency before they file bankruptcy! Beating the landlord to court is the surest way to make sure you aren’t out on the street once the state of emergency expires.
If you have more questions about evictions or foreclosures, or just about how bankruptcy works in general, don’t hesitate to call Lawrence & Associates at (513) 351-5997. Our attorney consultations are free, confidential, and can be done by phone or video. We’re Working Hard for the Working Class, and the COVID-19 pandemic can’t change that. Good luck out there!
Posted on Monday, June 1st, 2020 at 1:48 pm
A motor vehicle collision is a stressful, unhappy time no matter what. Even the most minor of crashes can cause property damage and injuries, and that leads to missed time from work, missed bill payments, pain, and frustration. The good news is, we have insurance and our insurance is supposed to take care of all this quickly and easily, right? But what if you can’t figure out which insurance is supposed to cover the collision? That’s the problem we are seeing more and more with the rise of the “gig economy” and services such as Uber Eats, DoorDash, and Grubhub, not to mention the original gig jobs of driving a taxi for Uber or Lyft. When you’re hit by a driver working as an independent contractor for one of these companies, you can find yourself in a confusing situation where every insurance carrier is pointing the finger at someone else.
Let’s start with the basics. In a normal motor vehicle collision where the other driver is at fault, your insurance steps in right away with no-fault benefits. In Kentucky the minimum no-fault benefits are $10,000 of PIP and in Ohio the minimum no fault benefits are $5,000 of med pay. Kentucky’s PIP goes toward medical bills and up to $200 per week in lost wages, while Ohio’s med pay only goes toward medical bills. After that, your insurance policy is done for a while. That is when the at-fault driver’s policy should step in. (If you have underinsured motorist coverage, your insurance might step back in at a later time, but that’s beyond the scope of this post.)
The problem with someone driving for a gig job is that you don’t know whose auto insurance policy should cover, at least not right away. Let’s use DoorDash as an example. Assume you were hit by a driver whose job was to take food from your local McDonalds to a DoorDash customer. This driver should have personal auto insurance to cover driving when that person isn’t working for DoorDash. After all, this is the at-fault driver’s personal vehicle and there are plenty of times when he or she is picking kids up from school, going to the grocery, or maybe going to another job. All of those things are personal to the driver and don’t involve DoorDash. But DoorDash also has its own insurance company that provides coverage for injuries caused by their employees while driving. Usually that insurance is through a California company called Assurant, even if you’re hurt in Kentucky or Ohio (the two states where Lawrence & Associates is licensed). So while the at-fault driver is working for DoorDash, the driver has two insurance policies covering their negligent driving: one personal, and one professional.
At first, having two different insurance policies at hand sounds great. Double the coverage, and almost no chance of running out of insurance while you still have medical bills to pay! What could go wrong? Unfortunately, the devil is often in the details. Here, that devil can be reduced to one question: Who has to pay first? Continuing our example above, let’s assume the at-fault driver for DoorDash has a personal auto insurance policy through State Farm and then DoorDash’s professional policy through Assurant. The driver caused the collision while going to pick up the food, but before actually getting to the restaurant. State Farm has an exclusion in all its policies that says they will not pay any money for a driver that is using the personal car in a professional job. Let’s further assume Assurant has an exclusion that says it only provides coverage from the moment the driver picks up the order to the moment the driver delivers it. If the crash occurs while the driver is picking up the food but before the food is picked up, it leaves the insurance coverage in a no-man’s land where nobody wants to pay. And that leaves the injured person who is not at fault with few good options.
What should you do if you find yourself in this situation? This will seem a little cliché when coming from an attorney’s website, but the first thing to do is call a lawyer. At law firms specializing in automobile accidents, attorneys should get a lot of training on how to unravel this type of contractual snarl. Not every insurance claim requires an attorney, but if both adjusters deny payment and each points the finger at each other, you’ve reached the point where paying an attorney is worthwhile.
Second, take a deep breath. While the resolution won’t necessarily be quick, you are likely to receive a resolution that causes insurance payments to go toward your medical bills, lost wages, the diminished value of your car, and you and your spouses pain and suffering related to the accident. In both Ohio and Kentucky, the law absolutely hates a lack of insurance coverage. Judges are instructed to try to find coverage from someone, somewhere, unless there’s just no way to do it. So in our example above, it’s most likely that you’ll get coverage from either DoorDash’s Assurant policy or the driver’s personal StateFarm policy.
Third, don’t let the confusion make you take less than you’re due just to get rid of the headache. It can be tempting to do that but this money is supposed to cover medical bills and replace missing paychecks. Your doctor and your mortgage company aren’t going to forgive your obligations out of sympathy for the tough situation you’re in, so you can’t take one red cent less than what you need to cover what you’ve lost.
Which insurance company should provide the coverage for the collision in the example above? DoorDash and Assurant are probably holding the bag, regardless of whether you use Ohio or Kentucky law. One of the first things we’d look at is whether the at-fault driver was logged into the DoorDash app when the collision occurred. If not, that points to the driver not being on the job and the driver’s personal insurance covering. But if the driver was logged in, that indicates the driver was on the job regardless of whether the driver had picked up the delivery food. State law has a lot of effect here, but often state law draws the line at whether the driver is furthering the employer’s interest (i.e. by getting food for delivery after a fee was paid on the app, which is how DoorDash makes money). If the driver is doing what the employer hires the driver to do, the employer can be liable. DoorDash isn’t likely to leave itself completely exposed with no insurance coverage at all, so even if the Assurant policy doesn’t have to cover the crash, DoorDash may have some other policy that will. DoorDash might even lean on Assurant to provide coverage for you, just to avoid a lawsuit. Solutions aren’t always straightforward and sometimes require arm twisting, but arm twisting is sort of what lawyers are for.
If you’ve been in a wreck like this one and all the insurance policies are telling you they won’t pay for the bills – or won’t pay enough – do yourself a favor and set up a free consultation with an attorney. Most attorneys charge contingency fees, so it won’t break your bank. And on top of that, good attorneys almost always move cases along more quickly and for better results than what you would see without the attorney. If you’ve got any questions about an accident like the DoorDash scenario in the example above, please give us a call at (513) 351-5997. Lawrence & Associates is Working Hard for the Working Class. We’d love to help you.
Posted on Sunday, May 17th, 2020 at 10:00 am
Ohio and Kentucky residents know their states are re-opening slowly, and the exact guidelines – Are restaurants open this week? How about bars? – can be really tough to pin down. Kentucky’s re-opening dates are published on the state’s official website with a handy poster explaining the guidelines here. Meanwhile, in Ohio there is a similar re-opening plan with dates that only vary from the Kentucky schedule by a few weeks at most.
Law firms are just one more industry that is trying to stay one step ahead while complying with all the state regulations. Since Lawrence & Associates has locations in both West Chester, Ohio and Fort Mitchell, Kentucky, we are combining both states’ re-opening guidelines into one plan to have both our offices physically reopen on June 15, 2020. We are waiting until June 15th because many of our employees are not able to get childcare earlier. Even where childcare facilities will be open, the restrictions on the number of children in a single room mean some employees might not be able to send their children in on the first day the facility opens. Until then, Lawrence & Associates will continue to represent our clients while working from home. We’ve made a few posts explaining how our focus on using the latest technology to achieve better results for our clients made the mandatory office shutdown very easy for us. You can see a video here explaining how our phones, email, and fax are all internet based and work normally even when the employees are working from home.
Our transition was so seamless, we even managed to achieve over $1,000,000.00 for our clients during the shutdown. In addition, we’ve been able to continue keeping our clients informed using video options such as Google Duo, Zoom, Microsoft Teams, and by telephone.
We know that your case is important and that work must continue. We recently produced another video talking about how we’ll manage our cases and personnel as we transition back into the West Chester and Fort Mitchell offices.
And while all this is going on, court systems are continuing to adjust and plan their own re-opening schedules. Here’s a little insight into how the court systems are planning for the next six weeks.
Personal Injury –The federal courthouse in Cincinnati recently re-opened. Kentucky is re-opening courthouses on a limited basis starting June 1, 2020. Despite that date, we expect that many routine motions and other issues will still have their hearings by video or teleconference due to restrictions on the number of people allowed in a courtroom. Lawrence & Associates’ attorneys have been attending or hosting depositions and mediations using Zoom. Important documents are being signed by Docusign so everyone can remain remote. Doctor’s offices’ re-opening has allowed us to get medical records in more quickly, and we are still asking clients if they’d prefer a medical records review by a doctor instead of an in-person exam, so your case can move forward despite your comfort level.
Workers’ Compensation – all workers’ compensation hearings are now moving forward normally, although mostly by telephone. Lawrence & Associates is seeing very little slowdown in the Workers’ Compensation system at this time, as both the Ohio hearing officers and Kentucky Administrative Law Judges have adapted to telephonic hearings. In fact, the telephone hearings have been so successful that we hope both systems continue to use them as a matter of course in the future. If you are in a workers’ compensation claim, you should see very little or no slow down at this time.
Bankruptcy– Much like the previous entry, there should be no slowdown in your ability to file bankruptcy cases. All hearings in federal court have been reset by video or telephone, and there was never a break in our ability to file bankruptcies. While this practice area requires client to produce a lot of documentation, Lawrence & Associates has a website set up where clients can upload all their documents with just the click of a button. There’s no more need to bring stacks of paperwork to an attorney’s office. If you need to file bankruptcy – and so many do because of the coronavirus-related layoffs – you should be able to hire an attorney and do so without leaving your home.
Social Security – although many social security hearings were remote even before the pandemic, this system has been slower to reset hearings than more. While Lawrence & Associates can still meet with clients by phone or video, and can get your claim filed, the hearings still haven’t been set at the same rate we saw before the COVID-19 pandemic. However, those first steps that can be done are still very important. Getting your initial application and follow-up motion for reconsideration filed are important pre-requisites to a hearing, so hiring an attorney and filing those documents still moves your case along the path of a successful disability claim. Lawrence & Associates’ social security disability attorneys expect to see many backlogged hearings set in the next month, but so far have not seen actual dates.
Our attorneys continued to be amazed and frustrated at the number of people who report that their current attorney is unreachable because the attorney’s office is closed, or who report that their cases are going nowhere because the courts are closed. This isn’t true, and if you’re being told these things you should find a new attorney. Good law firms with even a minimal grasp of modern technology should have no problem getting settlements or completing bankruptcies at this time. For those personal injury cases that can’t be settled, it is true that you cannot get a jury trial and that can be an impediment to moving a case forward. But ask your attorney about getting a bench trial done by video, because many courts are experimenting with this format to finalize cases without settlements. And above all, make sure you have an attorney that can keep you informed and move your case forward in case the COVID-19 cases start to rise again. While we all hope the quarantine is about to be over for good, no one knows. If businesses do shut their doors, will your case shut down or keep going? The decision you make today could affect you in the near future.
Posted on Tuesday, April 28th, 2020 at 1:47 pm
The short answer is, “No, you’ll almost certainly get to keep the money if you have a good attorney.” After all, that’s what we do – find the loopholes and use them to your benefit. The long answer is a little more complex. First, the CARES Act makes it clear that the stimulus check can’t be counted toward income in a bankruptcy. Therefore, if you’re an existing Chapter 13 client, the Chapter 13 Trustee can’t demand that you turn the money over. The Eastern District of Kentucky Trustee says so in her blog. Because the CARES stimulus check is not a part of your income, it can’t prevent you from filing a Chapter 7. Further, it can’t increase your disposable monthly income (DMI), which is one of the factors that sets your Chapter 13 payment.
The bigger problem is that nothing in the CARES Act says the stimulus payment can’t be property of the bankruptcy estate. It doesn’t say it can be, either. Instead, it’s silent. The “bankruptcy estate” is made up of all your assets on the date you file, include payments you expect to get shortly after filing even if you haven’t gotten them yet. If you filed bankruptcy before March 27, 2020, you don’t have a problem. You can’t expect to get a payment because of a law that didn’t exist yet. But if you filed on that date or after, that’s where things get troubling. The U.S. Trustee Program has explicitly told Trustees that “Regardless of whether the rebate is property of the estate, the United States Trustee expects that it is highly unlikely that the trustee would administer the payment after consideration of all relevant circumstances….” The word “administer” in that sentence means “take the payment away from the person filing bankruptcy”. That’s a strong statement and the underlining is in the original document. But it doesn’t outright prohibit a Trustee from taking the cash and some Trustees are more aggressive than others. Therefore, your best bet to keep the money is to make sure you exempt it. In most states and for those in which federal exemptions apply, that means using your precious Wildcard Exemption, which is used for everything from the cash you have in the bank to your second car. Artfully using the rest of your exemptions to keep as much Wildcard available as possible is essential, and that’s often where great attorneys are separated from those that shouldn’t be dabbling in bankruptcy law.
If you’re a DIY bankruptcy filer – which I don’t recommend – the actual language of the portion of the CARES Act that lays the foundation for all this is printed below. If you have other questions or know someone that needs to file bankruptcy right now, our doors are (virtually) open and we’re getting things filed quickly using Zoom, Google Duo, and the old fashioned fax and telephone. Good luck out there!
SEC. 1113. BANKRUPTCY.
(a) Small Business Debtor Reorganization.—
(1) IN GENERAL.—Section 1182(1) of title 11, United States Code, is amended to read as follows:
“(1) DEBTOR.—The term ‘debtor’—
“(A) subject to subparagraph (B), means a person engaged in commercial or business activities (including any affiliate of such person that is also a debtor under this title and excluding a person whose primary activity is the business of owning single asset real estate) that has aggregate noncontingent liquidated secured and unsecured debts as of the date of the filing of the petition or the date of the order for relief in an amount not more than $7,500,000 (excluding debts owed to 1 or more affiliates or insiders) not less than 50 percent of which arose from the commercial or business activities of the debtor; and
“(B) does not include—
“(i) any member of a group of affiliated debtors that has aggregate noncontingent liquidated secured and unsecured debts in an amount greater than $7,500,000 (excluding debt owed to 1 or more affiliates or insiders);
“(ii) any debtor that is a corporation subject to the reporting requirements under section 13 or 15(d) of the Securities Exchange Act of 1934 (15 U.S.C. 78m, 78o(d)); or
“(iii) any debtor that is an affiliate of an issuer, as defined in section 3 of the Securities Exchange Act of 1934 (15 U.S.C. 78c).”.
Posted on Wednesday, December 12th, 2018 at 8:32 am
Limited scope representation is a relatively new and somewhat controversial idea in the legal profession. Some attorneys are hesitant to provide limited scope representation because they are concerned about the ethical ramifications of entering into an agreement that limits their representation of a client and leaves the untrained client to perform some (or even most) of the duties traditionally reserved for attorneys. Generally, the influx of limited representation has developed due to the growing costs of legal services many people cannot afford. Proponents of limited scope representation believe clients are better off with the limited representation they can afford, as opposed to attempting to face their legal hurdles entirely by themselves.
As limited representation becomes more common, attorneys turn to their state bar associations in search of guidance on how to enact this model of legal services.The Kentucky Bar Association has not issued specific guidance on limited scope of representation of unsophisticated clients in areas such as family law or defense of collection activities. Kentucky’s SCR 3.130(1.2)(c) does specifically allow that, “A lawyer may limit the scope of the representation if the limitation is reasonable under the circumstances and the client gives informed consent.” However, paragraphs six and seven of the Supreme Court’s 2009 commentary paint only the broadest outlines of what might be considered a reasonable limitation. For example, paragraph six states that when representing an insured, one’s representation of the insured may be limited to the issue of coverage, leaving the insured to determine appropriate damages on its own.
However, may a Kentucky attorney contract only to draft an Answer and conduct initial discovery, but no more? An ethics opinion from 1991, E-343, does give authority to draft only initial pleadings, so long as the attorney does not give the appearance that the claimant is entirely unrepresented, stating, “The overriding consideration should be the recognition and satisfaction of the legal needs of indigent persons. Artificial barriers should not be set up in the name of legal ethics.” In other words, drafting an answer is only ethical so long as the reservations in KBA Opinion E-343 are followed, but if discovery is also drafted, the attorney has entered an ethically gray area.
Bearing that in mind, may a Kentucky attorney agree to pursue a divorce by agreement, but cease representation if property settlement is disputed? And if a Kentucky attorney contracts only to represent in pre-trial litigation but not in trial, is withdrawing on the eve of trial unethical? Both the rule and commentary fail to provide the detail necessary to answer these questions.
The neighboring bar associations in Tennessee and Indiana have yet to address this issue and do not have information on the issue available on their websites. However, other states in the region, specifically Ohio and Missouri, have addressed the issue to provide guidance to their attorneys on how to competently serve their clients through limited representation, while protecting themselves from potential ethical hurdles that this model of legal representation may present.
An article posted on the Ohio Bar Association’s website addresses the issue of limited scope representation, starting with the issue of ethics.When an attorney considers expanding his or her practice to include a new area or new service, one of the first concerns is how to ethically provide this service. Like Kentucky, the Ohio Rules of Professional Conduct do allow limited scope representation, pursuant to Prof. Conduct R. 1.2(c).This rule is an adoption of the Model Rules for Professional Conduct and a similar version of this rule appears in the rules governing attorney conduct in most states. Ohio’s rule allows limited representation of new and existing clients provided the limitation is reasonable and communicated to the client, preferably in writing (although written consent is not required).
According to Ohio Judge, Jeffrey Hooper, more than 50 percent of the cases in his court included an unrepresented party. Judge Hooper says it could be a “win/win” if more attorneys adopt the limited scope representation model because that allows clients to receive representation they can afford and attorneys may receive fees for providing this representation. No one is placed in a worse situation by the enactment of limited representation, according to Judge Cooper, if it is done correctly.
Ohio, which has a non-mandatory state bar association, adopted a piecemeal approach to incorporating limited scope representation. For example, the Sixth District Court of Appeals in Toledo has an official program for involving limited scope representation at the appellate mediation stage, while the First District in Cincinnati has not taken up limited scope representation at either the appellate court or bar association level. However, the Ohio State Bar Association (OSBA) adopted ABA findings that unbundling the following legal services can be permissible—and even desirable—if the client’s informed consent is obtained:
The Ohio State Bar Association’s recommendation list gives much clearer boundaries for what a la carte offerings may be ethically made, which is a boon for both attorneys and judges encountering limited scope representation for the first time. If you want to know more—a lot more—about the ABA’s findings that were adopted by the OSBA, their 149-page Handbook on Limited Scope Legal Assistance on limited scope representation is available online.
Of Kentucky’s neighbors, Missouri seems to be at the forefront of enabling its attorneys to provide limited representation, while also providing the guidance to enable them to do it competently and ethically. First, Missouri’s Rule 4-1.2(c) requires agreements to limit representation to be in writing and signed by the client, a brighter line rule than those of Ohio and Kentucky. The Supreme Court of Missouri and the Missouri Bar Association established a commission in 2002 to examine pro se litigation in the state. That committee released a report on limited scope representation that can be of great guidance to Missouri attorneys in implementing limited representation. This report addresses many issues Missouri attorneys face when providing limited scope representation and even provides an example of a limited representation contract for attorneys to use when unbundling their legal services. These are the most affirmative steps taken by a state Supreme Court and bar association to provide its attorneys with the information and resources they need to provide competent limited representation to clients who need it the most.
The Missouri Bar Association also provided guidance to attorneys to aid the determination of when limited scope representation is practical and ethical. The Missouri Bar Association advised that attorneys who deal in limited scope representation provide potential clients with questionnaires that will assess that individual’s ability to represent himself or herself to the degree the limited scope representation requires. Further, it set guidelines for the endpoint of limited scope representation, with specific requirements for how an attorney is to withdraw.
Finally, Missouri’s Rule of Civil Procedure 55.03 has a more detailed, more explicit list of activities expressly allowed under the rules, giving lawyers more guidance on whether a specific scope of limited representation is permissible. Attorneys in Missouri are expressly permitted: a) to draft documents to be filed in court without signing said documents; b) to appear and withdraw from representation at points of litigation expressly set forth in the contract, without fear of being held over into a trial without hope of payment from the client, and; c) to rely upon the self-represented party’s representation of the facts when drawing up legal documents or performing legal research. Missouri’s Rule 55 serves as a helpful list of dos and don’ts that give clear, logical guidance to attorneys seeking to engage in limited scope representation. We could find no other neighboring state with a better system in place.
The legal market, like any other, has an invisible hand. As market pressures such as rising tuition and the rising cost of litigation force attorney’s fees higher, new solutions emerge that resolve disparities between the cost of supplying legal services and the ability to pay by litigants demanding those services. Limited scope representation is the most relevant, prevalent and inevitable of those solutions. It is here to stay. Until the Kentucky Supreme Court modifies SCR 3.130(1.2)(c), or until appellate court rulings interpret how it is applied to the kind of limited scope representation described above, practitioners interested in providing such services should adhere to the ABA Handbook. Since SCR 3.130(1.2) (c) is modeled from the ABA rules of professional conduct), and review the specific programs created in Ohio and Missouri to see if they can adopt similar practices in their local Kentucky courts. By doing so, you should be able to help more people, stay ethically sound and grow your law practice.
Posted on Wednesday, December 5th, 2018 at 8:23 am
The following post is part of our Law Student Blog Writing Project, and is authored by Joe Trammell, a 2020 Juris Doctorate Candidate at The Ohio State University Michael E. Moritz College of Law.
Attorneys have learned in law school to be honest, even if it may seem to put them at a disadvantage. It is always better to be truthful, and if there is a good case it won’t matter that some of the law or facts are not favorable.
So here is the concession: you do not have to hire a workers’ compensation attorney to receive workers’ compensation. You are legally allowed to file for it on your own.
That may seem like a strange way to start a blog post for a law firm that does workers’ compensation, but do not worry. The rest of the article will detail why in many cases you should hire a workers’ compensation attorney.
There is a reason why there are many law firms that deal with this area. Laws are complicated, and workers’ compensation laws are a great example of that. Attorneys go through three years of law school (if they go full-time and do not do a dual-degree program) learning how to interpret them. At Ohio State’s law school, it is one of the first things taught to new students, and the process never stops. Add to it the need to interpret the exact meanings of parts of laws through reading cases decided by courts, and it is a very complicated process.
This is also why criminal trials guarantee a right to counsel. The landmark Supreme Court case, Gideon v. Wainwright, decided this. Mr. Gideon was not given representation in a burglary case, and faced a prosecutor who was in the courtroom for a living. Mr. Gideon lost his case, but after he won his Supreme Court appeal, he was retried—this time with representation—and was acquitted. Nothing had changed in Mr. Gideon’s case. He just had someone that knew how to take the facts and ask the right questions.
Unfortunately, the government does not provide counsel for workers’ compensation. But the point to sharing this is to illustrate how difficult it can be for people to understand the law and advocate for their rights when they have not been trained. That is not an indication of anyone’s intelligence or abilities; it just means that law is a specialized field and requires specialized training, the same way a doctor or pharmacist needs specialized training.
When you receive representation for your claims, you gain the benefit of that attorney’s education and experience not only practicing law, but practicing that specific kind of law. This may be pretty new to you, but the attorney is used to it. He or she knows what the laws say, what strategies to implement and what arguments to make, how to provide proof for your case, how to file the necessary paperwork, and how to answer the questions that will be asked. This relieves the burden on you and puts it on the shoulders of someone who does this for a career.
One complexity in workers’ compensation laws is the list of exempted employees. Both Ohio and Kentucky cover most employees. But both exempt agriculture workers, domestic workers, and anyone who voluntarily rejects workers’ compensation coverage. Kentucky exempts nonprofit workers who make their living through the nonprofit, while Ohio exempts volunteer nonprofit officers.
Another is the statute of limitations. Statutes of limitation prevent claims from being filed after a certain length of time has passed. In Kentucky, an employee has two years from the date of the injury to file for workers compensation (or, if the employer initially paid voluntarily and then stopped, two years from the last payment). In Ohio, it is only one year. But, if you were not keeping up on the law, you might think it is two years. The statute of limitations was changed to one year in 2017 after decades of being two. But, to further complicate, this change only applies to injuries and death from injuries. The statute of limitations for occupational diseases and death from occupational diseases remains two years.
Ohio also has something known as “subrogation,” which allows the Bureau of Workers’ Compensation to recover from the injured person being compensated if the injured person has recovered twice. An example of this would be if the person receives workers’ compensation and then sues the person responsible (which could not be his or her employer) and receives money from the lawsuit as well. The Bureau of Workers’ Compensation would be able to recover some of the money from the lawsuit. Kentucky has similar provisions, although subrogation is calculated very differently in the two states.
Kentucky has a specific law that allows coal miners suffering from Black Lung (which this author’s great-grandfather died from) to recover extra, although this law continues to fluctuate.
These examples demonstrate a portion of the complexities of workers’ compensation laws. There are many deadlines and forms to keep track of, and the laws continue to change. With the state elections taking place this year, the possibility remains strong that more changes are coming. It is possible for you to track this yourself, but attorneys have more experience dealing with these claims and better resources available to research and help with the case.
There are some situations in which an attorney is especially needed. One, representation is more needed when the employer does not cooperate. Perhaps the employer denies the claim, refuses to fully compensate you, or you are retaliated against. It can also help to have an attorney if there is something else complicating your claim, such as if you are receiving other government benefits or have a preexisting condition, or if your injury is serious and affects your work. It is also advisable to have an attorney with you when you have a workers’ compensation hearing.
If you are in this unfortunate situation or find yourself in it in the future, keep this in mind. You can go it alone, but it might be a more effective claim with some assistance from workers’ compensation attorneys.
Do you need help with a Workers’ Compensation claim? Call Lawrence & Associates and let one of our experienced attorneys help. We’re Working Hard for the Working Class, and we want to help you!
Posted on Monday, October 29th, 2018 at 2:55 pm
The following post is part of our Law Student Blog Writing Project, and is authored by Joe Trammell, a 2020 Juris Doctorate Candidate at The Ohio State University Michael E. Moritz College of Law.
When the Ohio Workers’ Compensation laws were written, one would have to think people like Sherry L. Redwine were who lawmakers had in mind. What is, or rather was, unknown was how far the benefits to someone in her situation would extend.
Ms. Redwine was injured while working for Ohio Presbyterian Retirement Services, Inc. in 2003. The life-changing damage she was left with included, according to State ex rel. Ohio Presbyterian Retirement Servs., Inc. v. Indus. Comm. (Ohio Presbyterian), “lumbosacral strain, radiculopathy right lower extremity, aggravation of pre-existing degenerative disc disease, depression, and ruptured disc at L4-5 with free disc fragment.” Her psychological injuries were enough to qualify her for what is known as “permanent-total disability” under § (section) 4123.58 of the Ohio Revised Code.
To qualify for this permanent-total disability, Ms. Redwine’s injuries had to be serious enough to prevent her from doing any sustained work, and that she will never make a full recovery. This does not legally prevent someone from doing any work, but the work can only be every once in a while, and not for a long period of time. No sustained wages can be earned. If an individual is able to do sustained work, the State believes she does not need permanent-total disability.
There is another option known as “permanent-partial disability,” located in Ohio Revised Code § 4123.57(A). In this case, a disability has to restrict one’s ability to work but not totally prevent it.
In Ms. Redwine’s case, she actually fit both categories. She had a psychological condition in the aftermath of her injuries that earned her permanent-total disability, and she began receiving disability payments in 2010. Three years later, she applied for permanent-partial disability for her physical injuries and was awarded it as well.
This was the dispute in Ohio Presbyterian. Ohio Presbyterian Retirement Services went to court arguing that Ms. Redwine could not receive both permanent-total and permanent-partial disability. They had good reason to do so, because employers are the ones responsible for workers’ compensation payments. They believed the language in the Ohio Revised Code does not allow for concurrent workers’ compensation. Ms. Redwine argued that since the two disability awards were for different things, she was eligible for both. This, of course, would affect how much she was paid.
In deciding the case, the Ohio Supreme Court had to take into account an Ohio Revised Code statute that says the workers’ compensation statute is to be interpreted as favoring the worker. This put Ohio Presbyterian Retirement Services at an immediate disadvantage. However, the Ohio Supreme Court mentioned a previous case that says courts cannot entirely “rewrite the statute,” or in other words stretch its meaning past what makes sense just to favor the worker.
What seems to be the crucial factor in the Ohio Supreme Court’s decision was a case they decided 90 years ago. Industrial Commission v. Kamrath, as the court explained in Ohio Presbyterian, says that “an injured employee has a right to recover workers’ compensation benefits only as specifically allowed by statute.” The court looked to the fact that there are other types of workers’ compensation that can be earned concurrently, and since they are mentioned specifically, the fact that permanent-total and permanent-partial are not mentioned specifically as being able to be earned concurrently means that they cannot be given out concurrently. This is a common way of interpreting laws known as expressio unius est exclusio alterius.
The significance of this ruling by the Ohio Supreme Court is that people who have multiple permanent injuries cannot receive multiple payments. The permanent-total disability payment is two-thirds of the injured worker’s average weekly earnings before the injury. Permanent-partial disability also awards two-thirds, but only up to 200 weeks. The percentage of the disability is the percentage of those weeks that are given. So someone with a 50 percent disability will get two-thirds of her average weekly earnings for 100 weeks. Ms. Redwine only gets the first calculation.
No doubt for Ms. Redwine and others like her it is a difficult and unfortunate situation; it would frustrate if not downright anger a person left in that position. However, this ruling is for the best. The argument might be made that concurrent payments would make up for the payment only being two-thirds of the worker’s average weekly earnings. There are several problems with this.
First, this is not the way to fix that sort of problem. If there is an issue with the payments, they should be fixed in the law, not through the commission handing out multiple awards and the courts consenting to it. That is the responsibility of the legislature.
Second, this would be too narrow in its solution. Not everyone qualifies for concurrent payments as they were given in the case of Ms. Redwine. Someone who does not have multiple types of injuries could not get both payments. Again, it should be the legislature that changes the law.
Third, there is not necessarily a problem with the system as is. The two-thirds payment does not include the other benefits, which include medical payments, rehabilitation, and funeral expenses. It also does not include other forms of government payments.
However, all those costs would never have happened had it not been for the injury. It might be a better system to award the full amount or even more if the employer was at fault. The system is not a perfect one. But the Ohio Supreme Court had it right in deferring to the legislature. The discussion to change these laws may be a needed one, but the courtroom was not the venue for it.
Posted on Wednesday, October 17th, 2018 at 8:35 am
The following post is part of our Law Student Blog Writing Project, and is authored by Dayna Wilson, a law clerk at Lawrence and Associates, who is pursuing her Juris Doctorate at Chase College of Law.
A loved one suffering a death on the job can be painful and extremely traumatizing. Determining which benefits a family is entitled to can be a rigorous and complex process. This process can be can be made significantly easier if you have an experienced workers’ compensation attorney who can thoroughly explain and guide your through the procedures.
Lawrence & Associates will strive to ensure that you receive the compensation you deserve after a fatal death of a loved one. In Kentucky and Ohio there are slightly different benefits that loved ones may recover. This blog is designed to provide you with a better understanding of workers’ compensation death benefits.
Losing an income earner can be financially difficult for a family. When the death of a loved one would not have occurred but for an on the job injury, the deceased’s surviving family members may be entitled to benefits under the Workers’ Compensation System. First, the people who are eligible to recover benefits in Kentucky include: a surviving spouse, minor children of the deceased worker, mentally disabled adult children of the deceased worker, and the parent of the deceased worker, if he or she had no spouse and no children.
Under Kentucky law, there are two possible statutes that can apply when determining your ability to recover your deceased family member’s income benefits. First, Kentucky Revised Statute 342.750 tells us the amount of compensation a widow and widower may receive when an injured worker dies because of the workplace injury:
(a) If there is a widow or widower and no children of the deceased, the widow or widower may receive 50 percent of the average weekly wage of the deceased
(b) To the widow or widower, if there is a child or children living with the widow or widower, 45 percent of the average weekly wage of the deceased, or 40 percent, if such child is not or such children are not living with a widow or widower, and in addition, 15 percent for each child. When there are more than two children involved, benefits shall be divided among the children.
According to Kentucky Guidebook to Worker’s Compensation, if an employee dies as a result of a work- related injury, a lump sum payment will be made to the deceased employee’s estate. If an employee’s death occurs within four years from the date of injury, as a direct result of the injury, a lump sum payment to the estate will be made from which burial expense are to be paid. The surviving spouse and certain defendants are also entitled to income benefits. Currently, Kentucky’s death benefit is $83,336.22. This amount is paid into the deceased worker’s estate.
The next statute that may apply to your situation is Kentucky Revised Statute 342.730 (3) when an employee, who has sustained disability dies from causes other than the injury but is otherwise still able to recover benefits.
(a) To a widow or widower, if there is no child under the age of 18 or incapable of self-support, benefits at 50% of the rate specified in the award; or
(b) If there are both a widow or widower and such a child or children to the widow or widower 45% of the benefits specified in the award. If a child is not living with a widow or widower then 40% of the benefits specified in the awards.
(c) If there is no widow or widower but such a child or children, then to then the children are entitled to 50 % of the benefits specified in the award.
As you can see, this process can be quite complex and complicated. Therefore, it is in your best interest to contact an experienced Workers’ Compensation attorney to assist you with your rights to recovery.
Similar to Kentucky, Ohio has strict rules set up to pay workers’ compensation benefits to the family of a fatally injured worker. If you are a surviving spouse, minor child of the deceased worker, or mentally disabled adult child of the deceased worker. In Ohio there are three types of benefits available to the family. The family may be eligible for a lump sum, payment of medical bills before death, and a benefit to dependents that is paid on a weekly or bi-weekly basis from the date of the worker’s death onward. Workers’ Compensation will pay 100% of your medical bills directly to the provider.
Unfortunately, Pursuant to Ohio Revised Code 4123.66 an individual may not recover more than $5,500 for funeral expenses. This statute puts many families in an unfortunate situation because it will often times provide inadequate relief for the suffering family. I am sure you can imagine; this number seems completely unreasonable for the amount of pain and suffering incurred by the deceased family.
Again, like Kentucky, if you are wanting to recover damages such as pain and suffering, loss of guidance or loss of consortium you would have to file a civil lawsuit. A spouse will receive death benefits until he or she dies or remarries. Upon remarriage, the spouse will receive a lump sum of two years’ worth of benefits.
If you are a dependent of the deceased worker, under ORC 4123.59, as long as you are a spouse or child, both can receive two-thirds of the “average weekly wage” the worker had before he or she died. A child is able to collect this benefit until the child turns eighteen. If a child is still in school, benefits will continue until the child turns 25 or unless the child is incapable of having a job for other reasons. For other family members, the Bureau decides how long benefits continue.
Dependents must file a claim for death benefits with the Ohio Bureau of Workers’ Compensation within one year of the worker’s death. In Kentucky, for the death benefits provided by the Kentucky Workers’ Compensation Act, the time limitations period is two years, and begins to run from the time of death.
According to the Bureau of Labor Statistics in 2016 there were 164 fatal occupational injuries. Falls, slips, or trips was the third-most frequent work event with 29 fatalities, unchanged from the prior year. When a worker passes away from a work-related injury a worker’s surviving family is eligible for benefits. An experienced workers’ compensation attorney will help you receive your deserving benefits. Here at Lawrence & Associates we will handle your workers’ compensation claims and make this difficult process a little easier for you and your family. We’re Working Hard for the Working Class, and we want to help you!
Posted on Friday, August 31st, 2018 at 3:52 pm
The following post is part of our Law Student Blog Writing Project, and is authored by Dayna Wilson, a law clerk at Lawrence and Associates, who is pursuing her Juris Doctorate at Chase College of Law.
If you suffer from an illness or injury that leaves you unable to work for an extended period of time, and you have long-term disability (LTD) insurance, there are some circumstances where your LTD coverage may affect the process of applying for Social Security Disability Insurance (SSDI) benefits. The LTD contract that you signed most likely contains a provision that requires you to apply for SSDI benefits while you receive your LTD benefits. Because this LTD contract requires you to apply for SSDI benefits, your LTD carrier will probably refer your case to a SSDI advocate firm or attorney whom they work closely with. This referral may be confusing to you because the LTD carrier may not clearly explain why they are making this referral. Because this process is not thoroughly explained, you might unsure how to move forward with this unfamiliar advocate group or attorney.
During this difficult time in your life it is important to keep in mind your ultimate goal – to be covered and protected – and to relay that goal to the LTD carrier’s advocate group or attorney who you have been referred to. This blog will explain your options for your SSDI case when you have LTD benefits, as well as, what you should do if your LTD carrier refers you to an advocate group or attorney so that you can ensure your goals are being met.
If your LTD carrier refers you to its own advocate group or attorney, keep in mind that you are not required to retain this specific advocate group or attorney. You are allowed to hire any representative that you want to assist with your SSDI case. All Social Security representatives charge the same type of fee for their representation. The LTD referral is no cheaper than any other attorney in your area.
Sometimes the LTD carrier will tell you that the group or attorney that they are sending you to does not cost you anything up front, keep in mind that this is also the case with a local attorney of your choice. All representatives charge the exact same rates under Social Security’s rules. The only difference between an attorney of your choice and your LTD carrier’s attorney is that the LTD’s attorney may send your LTD carrier a cut of their fee as part of their referral arrangement.
Your Long Term Disability carrier’s ultimate goal when referring your SSDI claim to this advocate group or attorney is to get you approved for SSDI as soon as possible. This is most likely also your goal. Your LTD carrier wants you to be approved for SSDI because, if you are approved for SSDI then your LTD benefits will terminate. This is the case whether or not you use the advocate group or attorney that the LTD carrier suggests.
The advocator group or attorney that your LTD carrier refers you to will most likely be a large national group or firm. This is not necessarily a bad thing, but there are things to be considered. Chances are with a large national group or firm you will never meet your attorney/ representative until the day of the hearing. This can make for an impersonal process, which can make you feel like just another name on a list and can potentially result in the representative or attorney leaving out essential information in your case. Meeting with your attorney/representative prior to your hearing is important so that your attorney/representative can fully prepare themselves, and you, for what to expect during the hearing. A local attorney/representative is more likely to go over your file and prepare you for the questions the judge will ask you at least a few days prior to the day of your hearing. This more personal experience can help you feel confident and prepared going into the hearing.
Remember, you have the right to choose your own attorney. Do not feel like you have to use the attorney or representative that the LTD carrier suggests. The Social Security Disability application process can be overwhelming. You should find a disability attorney who you like and trust. No matter who you decide to retain, be sure to communicate your ultimate goals and interests to your attorney. Retain an individual who makes you feel confident and comfortable with their legal representation. A good Social Security Disability attorney will ensure that you have a fair hearing. It is important that you choose an attorney who is familiar with the Social Security laws so they can offer you the best chance at getting your claim approved. It is important that you do not sign any forms or contracts that your long-term disability carrier sends you regarding the SSDI process until you have researched the firm and you are confident that they are the right fit for you. If you decide not to use the representative that the LTD carrier suggests, and instead hire someone else, be sure to inform your long-term disability carrier in writing that you have retained an different attorney and provide the LTD carrier with your attorney’s name and contact information.
Finding an attorney willing to take your Social Security should not be very difficult. However, finding a qualified disability attorney can be a tough process. Whether you use the representative that the LTD carrier suggests or someone of your own choosing, you should ask the right questions to determine whether the attorney truly has your best interests in mind. The first question you should ask is how accessible the attorney will be. Some social security attorneys handle large volume of cases, because of this, an attorney may not be able to provide adequate individual attention to your case. This should be one topic of your conversation. If your attorney understands your concerns and needs in the beginning, future misunderstandings can be prevented. Next, make sure the attorney has experience in the field of Social Security. This will ensure the attorney understands the nature of the Social Security Disability claim process. Finally, make sure you and your attorney get along. You want to trust your attorney and you want to make sure they have your intentions and goals in mind. The process will run much more smoothly if you hire a representative who will work hard for you, no matter if they are part of a national or local organization.
If you feel like a local firm is a better fit for your needs, Lawrence & Associates may be able to help you obtain the benefits that are owed to you by the Social Security Administration. We are strong advocates who focus on individual attention and stand up for your right to recover the benefits you’ve worked hard for. The Social Security Disability process can be exhausting, but with us you will have a personal experience with a local attorney for the same rate as a national organization recommended by your LTD carrier. We’re Working Hard for the Working Class, and we want to help you!
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