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The Benefits Available Through Workers’ Compensation in Cincinnati, Ohio

Posted on Wednesday, May 2nd, 2018 at 10:13 am    

The following post is part of our Law Student Blog Writing Project, and is authored by Thomas Rovito, who is pursuing his Juris Doctorate at the Ohio State University.

When one thinks of workers’ compensation, a person may reasonably think of it as a monolithic concept. However, when the theory meets reality, Ohio workers’ compensation includes several varieties, such as medical care, temporary disability, partial disability, permanent total disability, and benefits in case of death, all with unique characteristics under Chapter 4123 of the Ohio Revised Code.

Before reaching the characteristics of the unique varieties of workers’ compensation in Ohio, it is important to take stock of readily available and free resources on this topic. First, the Ohio Bureau of Workers’ Compensation and the Ohio Attorney General’s Workers’ Compensation Section have free resources from the state on this topic. While the webpages of the state agencies can be hard to navigate, they do have in-depth publications for injured worker, such as BWC Basics for Injured Workers and Compensation Types. Third-party legal websites Nolo and Findlaw have great information on this topic available for free. In addition, professional groups like the Ohio State Bar Association maintain readily available pamphlets on this topic.

Now, let’s turn to the characteristics of the unique varieties of workers’ compensation in Ohio.

I. Medical Care (O.R.C. § 4123.66)

This benefit includes “the amounts for medical, nurse, and hospital services and medicine as the administrator deems proper” under O.R.C. § 4123.66(A). In addition, this section includes “reasonable funeral expenses in an amount not to exceed fifty-five hundred dollars” if “death ensues from the injury or occupational disease.” If the injury damages the “eyeglasses, artificial teeth or other denture, or hearing aid” of the worker, they will be entitled to “a reasonable amount to repair or replace the same.” This statute also outlines the counter of the first prescription drug refill and welfare plans, which are further fleshed out in administrative rules derived from the statute.

II. Temporary Disability (O.R.C. § 4123.56)

Under temporary disability, “an employee shall receive sixty-six and two-thirds per cent of the employee’s average weekly wage so long as such disability is total” with a few internal threshold caveats as described in Chapter 4123. If the injury persists and prevents the clamant from working in the professional opinion of a certified medical doctor, after two hundred weeks the clamant must report for a determination by the Bureau of Workers’ Compensation for a permanent disability status determination. In addition, if the employee suffers a wage loss “as a result of returning to employment other than the employee’s former position of employment due to an injury or occupational disease” or “as a result of being unable to find employment consistent with the employee’s disability resulting from the employee’s injury or occupational disease,” then the employee is entitled to “compensation at sixty-six and two-thirds per cent of the difference between the employee’s average weekly wage and the employee’s present earnings, not to exceed the statewide average weekly wage” which cannot go beyond two hundred and twenty-six weeks in total.

III. Partial Disability (O.R.C. § 4123.57)

Partial disability flows from “[t]he district hearing officer, upon the application, shall determine the percentage of the employee’s permanent disability . . . based upon that condition of the employee resulting from the injury or occupational disease and causing permanent impairment evidenced by medical or clinical findings reasonably demonstrable.” This statute also has a schedule for injuries. For instance, the loss of a little finger is 15 weeks, whereas the loss of a leg is 200 weeks.

IV. Permanent Total Disability (O.R.C. § 4123.58)

If a worker is permanently and totally disabled, then “the employee shall receive an award to continue until the employee’s death in the amount of sixty-six and two-thirds per cent of the employee’s average weekly wage” with limited caveats. If the employee is also receiving Social Security disability benefits, and those benefits are reduced or terminated, then “the workers’ compensation award shall be recomputed to pay the maximum amount permitted under this division.” Very importantly, O.R.C. § 4123.58(C)-(D) distinguishes between what constitutes permanent total disability, and what does not constitute permanent total disability. Permanent total disability includes when “[t]he claimant has lost… the use of both hands or both arms, or both feet or both legs, or both eyes, or of any two thereof,” or “[t]he impairment resulting from the employee’s injury or occupational disease prevents the employee from engaging in sustained remunerative employment utilizing the employment skills that the employee has or may reasonably be expected to develop” under O.R.C. § 4123.58(C). However, permanent total disability does not cover “[i]mpairments of the employee that are not the result of an allowed injury or occupational disease,” “[s]olely the employee’s age or aging,” “[t]he employee retired or otherwise voluntarily abandoned the workforce for reasons unrelated to the allowed injury or occupational disease,” and “[t]he employee has not engaged in educational or rehabilitative efforts to enhance the employee’s employability, unless such efforts are determined to be in vain” under O.R.C. § 4123.58(D).

V. Benefits in Case of Death (O.R.C. § 4123.59)

Ohio law distinguishes between benefits in case of death if the worker dies from an injury or occupational disease cause by their employment if the employee has any dependents or not. If the employee does not have any dependents, then “the disbursements from the state insurance fund is limited to the expenses provided for in section 4123.66 of the Revised Code.” On the other hand, if the decedent employee does have “wholly dependent persons at the time of death,” then “the weekly payment is sixty-six and two-thirds per cent of the average weekly wage” subject to state-established internal payment caps. If there is more than one “wholly dependent persons at the time of death,” then “the administrator of workers’ compensation shall promptly apportion the weekly amount of compensation payable under this section among the dependent persons.” Dependent spouses “shall continue from the date of death of an injured or disabled employee until the death or remarriage of such dependent spouse. If the dependent spouse remarries, an amount equal to two years of compensation benefits at the weekly amount determined to be applicable to and being paid to the dependent spouse shall be paid in a lump sum to such spouse and no further compensation shall be paid to such spouse.” Other dependents “shall continue from the date of death of an injured or disabled employee to a dependent as of the date of death, other than a spouse, at the weekly amount determined to be applicable and being paid to such dependent other than a spouse.” These payments cease when other dependents “[r]eaches eighteen years of age;” “[i]f pursuing a full time educational program while enrolled in an accredited educational institution and program, reaches twenty-five years of age;” or “[i]f mentally or physically incapacitated from having any earnings, is no longer so incapacitated.”

Thus, workers compensation in Ohio comes provides many different benefits, including medical care, temporary disability, total permanent disability, benefits in case of death, all with unique characteristics. If you have been injured on the job and have additional questions, Lawrence & Associates offers free, confidential consultations. We’re Working Hard for the Working Class, and we want to help you. Call today!


Cincinnati, Ohio Workers’ Compensation Awards for Permanent Partial Disability and Permanent Total Disability

Posted on Monday, April 23rd, 2018 at 1:59 pm    

The following post is part of our Law Student Blog Writing Project, and is authored by Jennifer Tressler, who is pursuing her Juris Doctorate at The Ohio State University Moritz College of Law.

Below is a case study used by law students to teach them about the difference between Permanent Partial Disability (PPD) and Permanent Total Disability (PTD). By reading it, you may learn which of these applies to your Workers’ Compensation claim!

What Injuries Led This Cincinnati Woman to File for Workers’ Compensation?

Sherry Redwine was injured at work on August 13, 2003. She filed a workers’ compensation claim for lumbosacral strain, radiculopathy right lower extremity, aggravation of pre-existing degenerative disc disease, depression, and ruptured disc at L4-5 with free disc fragment and applied for permanent-total disability compensation. It was determined that she was now unable to perform any sustainable employment due to the medical impairment caused by her psychological condition, and thus she was awarded benefits to continue until her death.

In August 2013, Ms. Redwine applied for permanent-partial disability compensation. While she admitted that she was not entitled permanent-partial disability compensation for her psychological condition (which she had already been awarded permanent-total disability compensation for), she stated that she was entitled to this award based on her physical conditions. Her application was denied by a district hearing officer, who noted that her physical and psychological impairments were a result of the same workplace injury, saying therefore that she would be unable to collect both permanent partial disability and permanent total disability for the same injury. A staff hearing officer reconsidered her case and decided that claimants would not be barred from collecting both types of compensation provided that the conditions for which s/he is seeking permanent-partial disability were not the basis for which the permanent-total disability had been awarded.

In response to this, Ms. Redwine’s employer, Ohio Presbyterian Retirement Services, Inc. (OPRS), filed a complaint alleging that there was no evidence or authority to base this decision upon, but their complaint was denied. OPRS then appealed this decision to the Supreme Court of Ohio. Their appeal contains references to three different Ohio statutes (O.R.C. 4123.95, O.R.C. 4123.58, O.R.C. 4123.57(A)). The Supreme Court was concerned with the Industrial Commission’s interpretation of these statutes. In the event that the Commission is found to have misinterpreted a statute, the Court has the authority to issue something called a writ of mandamus to correct the misinterpretation.

How Do Permanent Partial Disability (PPD) and Permanent Total Disability (PTD) Actually Work?

The Industrial Commission is authorized to pay permanent-partial disability compensation to employees who suffer an injury or disease that result in a permanent partial disability and is intended to cover employees who can still work. Permanent-partial disability compensation comes in two forms: (1) compensation for a specific loss and (2) compensation based on the percentage of permanent disability pursuant to O.R.C. 4123.57(A), which is the type of compensation at issue in Ms. Redwine’s case. For the latter type of compensation, a district hearing officer determines the percentage of disability based on evidence submitting at a hearing, with compensation based upon the employee’s wages.

Permanent-total disability is also calculated based upon an employee’s wages and lasts until the employee’s death. The purpose of this type of compensation is to provide injured workers with compensation for loss of earning potential resulting from their injury or disease. This type of compensation also has two categories: (1) compensation for loss of body parts and (2) compensation for a workplace injury that prevents the employee from obtaining future lucrative employment, which is the type of compensation at issue in Ms. Redwine’s case.

The rules of statutory interpretation that the Supreme Court of Ohio is bound by are that they must determine and attribute the legislative intent, that the legislative intent must be determined primarily from the language of the statute itself, and if the statute is unambiguous, they must apply the statute as written. It is also mandated that workers’ compensation laws be construed in favor of employees.

Keeping these rules in mind, the Supreme Court of Ohio’s main issue was to decide whether the Industrial Commission has the authority to grant concurrent compensation of permanent-partial disability and permanent-total disability under O.R.C. 4123.57(A) and O.R.C. 4123.58, respectively. They held that the Industrial Commission does not have this authority.

The Court’s reasoning is that the language of the statutes is so plain and unambiguous that they are forced to apply the language of the statutes as written. Since there is no language in the workers’ compensation statutes that specifically allow for concurrent payment of permanent-partial disability and permanent-total disability compensation, the Court was unable to find for Ms. Redwine. The Industrial Commission argued that the statutes do not specifically prohibit concurrent payments in the same claim, but the Court countered by pointing out precedent that an injured employee only has the right the recover workers’ compensation benefits allowed by statute. The Court says that if the legislature intended to allow injured workers to concurrently receive permanent-partial disability and permanent-total disability payments in the same claim, it could easily have included it in the statutes. The Industrial Commission maintained that the statutes neglecting to comment on the issue of concurrent payment creates an ambiguity in the statutory language that must be decided in the workers’ favor, but the Supreme Court of Ohio reasons that the omission was intentional. Per Ms. Redwine’s request, the Court reopened her case for further consideration, but after hearing oral arguments on both sides, the Court adhered to their decision.

How Can Greater Cincinnati Residents Get the Permanent Partial Disability (PPD) and Permanent Total Disability (PTD) They Deserve?

What does this mean for workers injured on the job? Being unable to concurrently collect both permanent-partial disability compensation and permanent-total disability compensation will reduce benefits able to be collected by the most severely injured workers on the job. Workers like Ms. Redwine, who suffered both extensive physical and extensive mental injuries during her employment, will need to choose whether to apply for permanent-partial disability compensation or permanent-total disability compensation, as they will be unable to successfully apply for and receive both types of compensation. This may sound overwhelming, or even scary, but do not be afraid to reach out for help!

If you have been injured on the job like Ms. Redwine, contact Lawrence & Associates today. We can help you explore options to get the workers’ compensation you deserve! Call today for a free consultation at (513) 351-5997. We’re Working Hard for the Working Class, and we want to help you!


Workers’ Compensation Benefits in Ohio

Posted on Friday, April 20th, 2018 at 10:04 am    

Attorneys Justin Lawrence & Marisa Dyson discuss the benefits that the Ohio Bureau of Workers’ Compensation (BWC) offers injured workers during and after a workers’ compensation claim.


The significance of Parker v. Webster County Coal LLC

Posted on Monday, April 9th, 2018 at 1:20 pm    

Parker v. Webster County Coal LLC (Dotiki Mine), 529 S.W.3d 759 (Ky. 2017) is one of the most impactful Supreme Court decisions on Kentucky workers’ compensation law in recent times. Members of the Kentucky Legislature are politicking over revisions to the law as a result of the decision and practitioners for plaintiffs and defendants are arguing over how to settle claims in light of the changing legal landscape. Injured workers are left uncertain as to what benefits they are entitled.

In a workers’ compensation claim, if an injured worker is not permanently totally disabled then they are entitled to either 425 weeks or 520 weeks’ worth of income benefits, as determined by their percentage of impairment. However, prior to Parker, benefits would cease upon the date that the employee qualifies for social security retirement benefits or two years after the employers injury, whichever last occurred, pursuant to KRS 342.730(4).

The state of the law was that if an older worker got hurt, they got less benefits than a younger worker with an identical injury. The logic of cutting off benefits to an injured worker who is older was to prevent duplicate benefits in the form of retirement income and to allow savings in the workers’ compensation system. Parker did not address the absurdity that not every employee ceases working at retirement age, nor did it comment as to whom such “savings” went (spoiler alert –it’s the insurance company). Parker determined the issue of whether there was a rational basis to support a statute that undisputedly treated older and younger workers differently, but it did so in a way that perhaps the parties did not expect.

Mr. Parker was born in October, 1939, and worked as an underground coal miner for Webster County Coal LLC since 1974. In September, 2008, he slipped trying to clamber over a conveyor belt, injuring his knee and back. The Defendant challenged the injury to the spine, but ultimately the Administrative Law Judge ordered both the back and knee were compensable. Mr. Parker was awarded 4% impairment for his knee and 22% impairment for his low back injury, a combination of 26% whole person impairment. Ordinarily this would have qualified someone for 425 weeks’ worth of benefits, but with Mr. Parker being 68 years old at the time of his injury he qualified for social security retirement benefits. The Administrative Law Judge found that because Parker had received two years of temporary total disability benefits he was not entitled to any additional income benefits for his permanent disability. The Administrative Law Judge based his reasoning on KRS 342.730(4).

Plaintiff appealed arguing the unconstitutionality of KRS 342.730(4) claiming infringement of his right to due process, abrogation of jural rights and violation of the equal protection clause. Defendant countered that based on precedent these arguments were without merit.

Indeed there had previously been a failed constitutional challenge to KRS 342.730 (see McDowell v. Jackson Energy RECC, 84 S.W. 3d. 71 (Ky. 2002) and Keith v. Hopple Plastics, 178 S,W. 3d 463 (Ky. 2005). The Court justified its reason to revisit in part on the 2011 case Vision Mining Inc. v. Gardner, 364 S.W.3d 455 (Ky. 2011) but ultimately the Court decided the issue on the distinction between teachers, who participate in a retirement program separate from Social Security Retirement, and other workers in the Commonwealth . Teachers who had not had outside employment and who suffered a work related injury were not subject to the limitation of KRS 342,730 because they never qualify for Social Security Retirement benefits. The Court framed the issue as being disparate treatment between older workers who qualify for Social Security Retirement and older workers who do not.

The Court applied a rational basis test, concluding that to be the correct standard for social legislation like the Workers’ Compensation Act. It found that treating all other workers differently than teachers did not have a rational basis. The Court found the logic of avoiding duplicate benefits failed muster in the teacher scenario and found that pursuant to Vision Mining financial savings did not constitute a rational basis either.

Following Parker, it appears the Department of Workers’ claims is falling back to the tier down provision of the 1994 Act. Pursuant to that statute, an award of benefits was reduced by 10% at age 65 for one year and then reduced again by 10% annually until age 70. Once an injured worker reached 70, the benefits were no longer tiered down and they would continue for the duration of the award. Under the 1994 statute, Mr. Parker would be entitled to 425 weeks’ worth of benefits, rather than none at all.

The Kentucky legislature appears to be entertaining a much more severe reduction for the elderly workers of Kentucky. As of writing, Defense attorneys are arguing that benefits are likely going to be capped at 67 regardless of retirement benefits. Workers compensation carriers are taking this position on claims in and out of litigation to try and reduce their exposure on claims where the injury is clearly compensable.

Increasingly, people do not retire at 65. Sometimes they wish to continue their work, perhaps more often they have no choice but to work, people are living longer and retirement benefits are often insufficient. Occasionally, older workers need to support grandchildren or other people dependent for a myriad of reasons. Our 2018 society does not support a bright line rule that income benefits injured people rely on should stop at 65, 67, or any other arbitrary age. It is perhaps significant to remember the purpose of act, to provide income benefits and medical treatment for the cure and relief of a work-related injury. The focus should not be how old, it should be how hurt. If we lose sight of that everybody potentially suffers.


Lawrence & Associates Help Cincinnati Firefighter Get Workers’ Compensation Benefits

Posted on Wednesday, April 4th, 2018 at 10:16 am    

The following post is part of our Law Student Blog Writing Project, and is authored by Joseph Lowe. Lowe is a law clerk here at Lawrence and Associates, and is pursuing his Juris Doctorate at NKU Salmon P. Chase College of Law.

Lawrence & Associates pays attention to the law. You probably read that and thought, “Well, I hope an experienced group of attorneys pays attention to the law!” But what you may not know is that over time the law changes. What separates the great attorneys from the rest is the amount of attention they pay to the ever changing law. Recently, Attorney Marisa A. Dyson exemplified what it means to pay attention to the new laws and the benefits they can provide injured workers.

Marisa has been practicing law since 2014. She desires to represent her clients to the best of her ability and that means keeping tabs on how the law may be changing. Marisa represents many clients with Workers’ Compensation claims. Recently, Marisa won a case for her client largely because she was paying attention to new changes in the law. Before April of 2016 a firefighter could not get Workers’ Compensation benefits if he could not prove that his cancer was caused by exposure to all of the various carcinogens that come with fighting fires. Obviously, as pinpointing the cause of cancer is nearly impossible, this was a very difficult burden for injured workers to satisfy.

This past year Marisa represented a client who may not have been able to get the benefits he desperately needed if this new law were not enacted. Marisa followed Ohio S.B. 27 and the corresponding new legislation which became effective in April of 2016 and used this brand new statute to gain Workers’ Compensation coverage for a firefighter. This law was specifically enacted for the protection of firefighters who are denied Workers’ Compensation when they are suffering from cancer that they have acquired from the risks of their job.

Marisa’s client had been a firefighter for almost 30 years and had developed cancer as a result of his service to his community. This new law lays out a rebuttable presumption that if a fire fighter contracts cancer before the age of 70, has completed 6 years of hazardous duty within the past 15 years, and develops cancer, such cancer is caused by and a result of his or her employment. Marisa argued the facts of her client’s case and fought to get him the benefits he deserves. Specifically, Marisa won the firefighter the benefits he is entitled under the new law by proving:

  1. Her client served as a firefighter in hazardous duty for the required 6 years,
  2. Her client was under 70,
  3. Her client was actively working for the fire department within the past 15 years,
  4. Her client was disabled because of his cancer, and
  5. Her client was exposed to a 1 or 2A carcinogen as a result of employment.

It is important to have an attorney who not only advocates for your cause, but is equipped with the proper knowledge of what the law is when it matters to you. Marisa and the attorneys at Lawrence and Associates pay attention to the law and how it is changing. They are experienced at representing a variety of clients and will provide expert legal representation to every client they serve. If you need help with a Workers’ Compensation claim, don’t go it alone. Call Lawrence & Associates for a 100% free consultation. We’re Working Hard for the Working Class, and we want to help you!


The Intersection of Personal Injury and Bankruptcy: What Happens When Your Personal Injury Claim Intersects with the Defendant’s Bankruptcy

Posted on Tuesday, March 27th, 2018 at 9:53 am    

The following post is part of our Law Student Blog Writing Project, and is authored by Thomas Rovito, who is pursuing his Juris Doctorate at the Ohio State University.

Note from editor: This article discusses federal law and cites to sources outside the Cincinnati and Northern Kentucky area. If you live in Cincinnati or Northern Kentucky, you can review Kentucky specific case law at our article for the Advocate, which is re-printed here.

 

Consider the following hypothetical. You are driving your car on the way to work, and you get t-boned at an intersection. You, as plaintiff, commence personal injury litigation against the other driver, as defendant, but in the midst of this litigation, the defendant driver files for bankruptcy as a debtor. Do you lose your lawsuit, or what do you have to do to keep the lawsuit alive?

While this situation is not the norm, bankruptcy attorneys do come across a few cases that fit the above fact pattern. And some of those attorneys have drafted white papers to facilitate knowledge on the process of preserving the plaintiff’s claim, such as the standout article by Jeffrey Traurig, “Defendant in Personal Injury Action Files for Bankruptcy – Now What?,” as well as “Scheduling and Protecting Personal Injury and Other Causes of Action in Bankruptcy Cases,” and “How Bankruptcy Affects Personal Injury Lawsuits.”

First, upon the debtor-defendant’s petition for bankruptcy, the bankruptcy court will grant an automatic stay to the personal injury litigation pursuant to 11 U.S.C. § 362(a). This stay will pause external litigation during the course of the bankruptcy proceeding. Once plaintiff’s counsel is on notice (either through being filed and served through the court of the personal injury claim or bankruptcy court, hearing from the client, or learning through a publication), the plaintiff’s counsel must obey the stay, as actions taken in violation of the stay “are generally void,” and are possibly punishable with sanctions from 11 U.S.C. § 362(k). The plaintiff’s attorney should monitor any bankruptcy filings or notices to note any changes to the automatic stay or any determinations that would result in claim or issue preclusion.

It also matters what kind of bankruptcy the debtor is seeking from the bankruptcy court. For instance, if the debtor is petitioning for a Chapter 7 liquidation, then plaintiff’s counsel should timely file a “proof of claim” against the debtor’s estate. According to Traurig, a timely filing means “a proof of claim must be filed before the proof of claim deadline regardless of whether a claim is scheduled as undisputed.” A claim, under 11 U.S.C. § 101(5), is a “right to payment, whether or not such right is reduced to judgment, liquidated, unliquidated, fixed, contingent, matured, unmatured, disputed, undisputed, legal, equitable, secured, or unsecured.” The “proof of claim” must be presented on the official proof of claim form pursuant to Federal Rules of Bankruptcy Procedure 3001 to the bankruptcy court, which is a necessary precondition to receive disbursements from the debtor’s estate. To improve the relative chances of success, the plaintiff should attach legal documentation, such as the summons and complaint (ideally with medical records and evidence of damages) against the defendant. Plaintiff’s counsel should be vigilant for any bankruptcy filings or public notices regarding the proof of claim deadline, and seek to preserve and present any credible evidence of the plaintiff’s injuries.

Another possible move plaintiff’s counsel could make to ensure timely compensation for his client is to petition the court to modify the automatic stay through 11 U.S.C. § 362(d). As the bankruptcy automatic stay may last years, it may delay compensation for the plaintiff; however, 11 U.S.C. § 362(d)(1) allows “[o]n request of a party in interest and after notice and a hearing, the court shall grant relief from the stay provided under subsection (a) of this section, such as by terminating, annulling, modifying, or conditioning such stay—(1) for cause. . . .” It is important to note that “cause” is not defined in the relevant section, and that the various circuit courts have applied different factor based tests to evaluate whether there is “cause.” As noted by Traurig, courts may consider whether the debtor was insured and how much the debtor would pay during the cause evaluation:

Because prejudice against a debtor is one of the primary factors in any balancing test, one of the factual issues that weighs heavily in determining whether the automatic stay should be lifted for a personal injury action to proceed is whether insurance is available to satisfy the claim and whether the debtor would be required to pay defense costs or deductibles. If a debtor has sufficient third party commercial coverage with no deductible (or a deductible that has already been met) and if the insurance carrier is responsible for all defense costs with no premium adjustment, it is likely that a bankruptcy court would authorize the lifting of the automatic stay to permit the claimant to proceed against insurance.

On the other hand, if the debtor is responsible for defense costs and deductibles, or if insurance will not satisfy the claim in full, the court will need to balance the factors to determine whether the stay should be lifted, including whether there is a likelihood that pre-petition unsecured creditors will receive distributions in the bankruptcy case and the ultimate need for the claim to be liquidated, as well as whether the claimant will agree to waive claims against the debtor’s estate if insurance is not adequate.

Thus, if the preconditions of 11 U.S.C. § 362(d) are met, and the defendant has insurance and would be subject to minimal cost, then there is an enhanced possibility of the bankruptcy automatic stay being modified.

An additional complication concerns the statute of limitations for the plaintiff’s claim and the imposition of the automatic stay. According to Traurig, while the statute of limitations “may” be extended, it “is not tolled.” Thus, plaintiff’s counsel should keep an eye on whether the statute of limitations is running down, and whether plaintiff’s counsel could file within 30 days’ notice of the termination of the automatic stay, pursuant to 11 U.S.C. § 108(c).

Thus, as Traurig concludes, the key to keeping your claim alive at the intersection of personal injury and bankruptcy is to ensure:

[T]hat proper steps be taken to ensure that a claimant’s rights are protected and that the attorney is properly representing the client, including ensuring that a proof of claim is timely filed and that the statute of limitations does not expire after the termination of the stay. Attorneys should also consider whether they should actively seek to modify the automatic stay to proceed against insurance while the bankruptcy is pending and should review notices and other pleadings filed in the bankruptcy case to ensure that orders are not entered that impair the ability to proceed against available insurance and should consider monitoring the docket in the bankruptcy case.

If you’ve been hurt in an accident or need to file bankruptcy, don’t go it alone! Lawrence & Associates offers free, confidential consultations and has helped thousands of people in Cincinnati and Northern Kentucky. We’re Working Hard for the Working Class, and we want to help you!


What Does a Bankruptcy Attorney Do in the Eastern District of Kentucky?

Posted on Tuesday, March 20th, 2018 at 2:35 pm    

Hiring a bankruptcy attorney can be expensive. Although Lawrence & Associates doesn’t charge any upfront fees for a Chapter 13 bankruptcy, many other Northern Kentucky* law firms charge up to two thousand dollars before the bankruptcy is filed. All law firms charge the court’s filing fees and any costs related to credit counseling or credit reports up front, and these expenses generally run in the range of $350, depending on the number of people filing bankruptcy. And Chapter 7 bankruptcies always have fees that must be paid up front, before the bankruptcy is filed. For Lawrence & Associates, a Chapter 7’s fees and costs are generally around $1,350 depending on the number of people filing bankruptcy. (This includes the court’s filing fee and the cost of pulling a credit report.) Again, other Greater Cincinnati law firms charge a wide range of fees that can go as high as $3,000. Other kinds of bankruptcy can be even more expensive.

So what does the bankruptcy attorney do to justify these fees? When you are shopping between local law firms and deciding who you should hire, how can you compare what services are being offered to know whether your hundreds or thousands of dollars are being wisely spent? We’ve recently written articles that give potential clients tips about how to choose an attorney based on reviews, history with the bar association, membership in attorney organizations, and the attorney’s actions at the consultation. This article will discuss the various, generally reoccurring parts of a bankruptcy attorney’s job to give some insight as to how attorneys earn their keep.

Pre-Filing Work – Gathering Documents and Filling out Schedules

I often tell my clients that 90% of bankruptcy work is preparing things to be filed correctly. If a bankruptcy is well prepared, it leads to far easier hearings and often a quicker resolution for the client. If a bankruptcy is poorly prepared, it can lead to seizure of the client’s assets, failure to discharge some debts, or even allegations of bankruptcy fraud. Attorneys earn their fee before the bankruptcy is even filed, even if that is not where the majority of their time is spent.

There is a long list of documents that Lawrence & Associates’ clients are asked to gather before the bankruptcy is filed. Many of these documents are inaccessible to anyone but the client, or getting a copy of the document would take far longer for the attorney than it would for the client. They include copies of:

  • Driver’s License and Social Security Card
  • Credit Counseling Course Certificate
  • List of Creditors Not on the Credit Report
  • Six Months’ Bank Statements
  • Six Months’ Proof of Income for the Household
  • Recorded Deed, Mortgage, and PVA Value for any Real Property
  • Certificate or Memorandum of Title for any Vehicles
  • Proof of Insurance for any Vehicles
  • Two Years’ Tax Returns
  • Life Insurance Policies
  • Divorce, Child Support, or Child Custody Orders/Agreements

Each of these documents plays an important role in preparing for the bankruptcy. Each must be provided to the Trustee within seven days after the bankruptcy is filed, so it is crucial that the attorney gather them ahead of time. It is important for the attorney to not only review these documents and use them to prepare the bankruptcy forms and schedules, but also to understand how the information within them can affect the bankruptcy filing. The bankruptcy rules are formed by Section 11 of the United States Code, and those rules fit together to form the best bankruptcy possible for our client. Knowing how to fit the rules together is often like trying to make a puzzle when you know you have all the pieces, but don’t know what the eventual picture should look like. Again, this is where the attorney earns his or her keep!

At Lawrence & Associates, we recently joined the 21st Century and set up a portal for our clients to use when submitting paperwork and other information about their bankruptcy. Many attorneys still have clients schedule one or more appointments during business hours to come into the office to provide this paperwork and information. We decided that, since most of our clients are working and struggling to make ends meet, it was harmful to ask them to take time out of their workday for a function that could be performed outside normal business hours if it was done online. For clients who are not comfortable using the online portal, we still schedule face-to-face appointments in the office. In addition, we are willing to do consultations either over-the-phone or face-to-face.

After the bankruptcy paperwork is prepared, all bankruptcy attorneys must have a face-to-face appointment to sign all the bankruptcy documents and file them with the court. This meeting is mandated by the bankruptcy rules. During this meeting, the bankruptcy attorney should fully explain what is in all the documents, what will happen after the bankruptcy is filed, and what effect they expect the bankruptcy to have on your assets, debts, and credit score. Expect this meeting to take from one to three hours, depending on the complexity of the bankruptcy.

The 341 Creditors’ Hearing, the Confirmation Hearing, and other Court Hearings

All bankruptcies have at least one hearing, called a 341 hearing or creditors’ hearing, and this is often the most nerve wracking part for the client. However, it is nothing to worry about if the bankruptcy has been well-prepared! These hearings are typically scheduled for a ten to fifteen minute period of time, and a month’s notice is given prior to the hearing so everyone can take off work. At the hearing, the client will be placed under oath, but all the questions are generally simple confirmations of the client’s asset and debt situation – “Is it true the 2013 Camry is the only car you own?” – or canned questions that are asked of everyone regardless of their situation – “Have you lived in Kentucky for the last two years?” It is common at these hearings for the Trustee to tell the attorney that he or she would like to see more documentation, or would like to see a change in the bankruptcy filing. Such requests are generally easy to accomplish, and have a minor effect (or even no effect) on the bankruptcy itself. It is the attorney’s job to comply with the Trustee’s requests.

Chapter 13 bankruptcies also have confirmation hearings, but it is very rare that a client would have to attend one of those. In fact, in Northern Kentucky it is very rare for the confirmation hearing to have to occur at all! Generally, good communication between the attorney and the Trustee eliminates the need for this hearing.

Finally, there may be many more hearings for a bankruptcy depending on whether additional issues arise. Such hearings are uncommon in Chapter 7 bankruptcies, but common in Chapter 13 bankruptcies. Such hearings may arise when creditors object to confirmation or discharge, when our client has to object to a creditor’s fraudulent proof of claim, or when our client needs to temporarily suspend plan payments. It is the bankruptcy attorney’s duty to represent the client at all such hearings, even if they occur months or years after the fee is paid. Particularly for Chapter 13 clients, several years may go by between hearings. Chapter 13 clients should never worry about being charged by their attorney for calling with simple questions about their bankruptcy payment.

In all hearings, it is wise to have an experienced bankruptcy attorney who files a lot of claims. Knowing the bankruptcy rules is one part of successfully navigating bankruptcy hearings, but knowing the Trustee is just as important! Chapter 7 and Chapter 13 Trustees have their own viewpoints on what is reasonable and what is not, on how laws should be interpreted, and on what is best practice in bankruptcy cases. By knowing the Trustee’s proclivities, the attorney can simplify and speed up the bankruptcy, and can often maximize the amount of income the client can keep (in a Chapter 13) or the number of assets the client can keep (in a Chapter 7).

If you have any other questions about what a bankruptcy attorney should be doing for you, please call our Fort Mitchell, Kentucky office at 859-371-5997. We are one of the largest bankruptcy filers in Northern Kentucky and we have helped over 3,000 clients. We’re Working Hard for the Working Class, and we want to help you!

*Northern Kentucky includes the following counties: Boone, Kenton, Campbell, Gallatin, Grant, Pendleton, Bracken, Mason, and Robertson. Each of these counties reports to the federal court in Covington.


Medical Bills and Bankruptcy: Can filing a bankruptcy affect my medical bills?

Posted on Wednesday, March 14th, 2018 at 11:29 am    

The following post is part of our Law Student Blog Writing Project, and is authored by Jennifer Tressler, who is pursuing her Juris Doctorate at The Ohio State University Moritz College of Law.

Seeing medical bills pile up is one of the most stressful and overwhelming experiences a family can go through, particularly when being able to pay for them seems to be a far-off dream unable to be reached in this lifetime. Sometimes, the only thing that seems feasible is declaring bankruptcy. If this sounds like you, do not worry! You are not alone.

Although courts do not require individuals declaring bankruptcy to disclose their reasons for doing so, research shows us that medical bills are the single largest cause of personal bankruptcy, accounting for between fifty and sixty-two percent of all personal bankruptcy filings. This is unsurprising when considering that medical bills often come on suddenly, can be unexpected, and are often very large amounts of money that insurance does not always cover. [Ed. Note: In Northern Kentucky, most medical treatment is provided by St. Elizabeth hospital or one of its subsidiaries. The article below applies to St. Elizabeth and all its subsidiaries, regardless of whether St. Elizabeth has filed a lawsuit against you!]

When filing for bankruptcy, a consumer’s debt is separated into multiple categories. This is because only certain debts can be eliminated through bankruptcy. Fortunately, medical debt is one of them! During bankruptcy, medical debt is considered general, unsecured debt, just like credit cards. This means that medical bills receive no priority treatment during bankruptcy and are able to be wiped out during bankruptcy filing. Depending on what type of bankruptcy a consumer qualifies for and which type of bankruptcy is in his or her best interests, he or she may be able to eliminate financial obligations for medical bills through filing for either Chapter 7 or Chapter 13 bankruptcy.

Chapter 7 bankruptcy is more common than Chapter 13. If a consumer qualifies for Chapter 7 bankruptcy, medical bills, along with all other general, unsecured debt, will be eliminated. There is no limit to the amount of medical debt that can be discharged in Chapter 7 bankruptcy. Any medical bills paid for by credit card will also be discharged. However, in order to qualify for a Chapter 7 bankruptcy, a consumer’s disposable income must be low enough to pass a means test.

The means test is intended to disqualify people with too high of income levels from filing for Chapter 7 bankruptcy. The test calculates whether or not a consumer has the means to pay back a portion of what is owed to creditors. It compares a consumer’s average monthly income for the six months prior to filing for bankruptcy against the median income of the state the consume is domiciled in while factoring in the consumer’s expenses as well as the national and local standards for living expenses. The test takes this information and determines whether a consumer has any disposable income left over with which to pay creditors.

A simple way to determine if you pass the means test is to figure out if your income is above or below your state’s median income for households which are the same size as your own. If your average income for the six months prior to filing for bankruptcy was below the median, you automatically pass the means test and qualify for Chapter 7 bankruptcy and do not need to fill out the rest of the means test. If your average income for the six months prior to filing for bankruptcy was above the median, you do not automatically pass the means test. However, this does not mean you have failed; it simply means you must complete the rest of the test, which requires more information about your expenses.

When filling out the means test, you are required to use IRS standard expense figures (which can be found here) for Northern Kentucky for certain living expenses, even if your actual expenses are higher than the allowed standards. However, actual expense figures are allowed for other expenses such as mortgage, car payments, taxes, health insurance, and child care. Speaking to an attorney can help you figure out the best way to determine if you can pass the means test.

If you do not pass the means test, you cannot file for Chapter 7 bankruptcy. You still may be able to file for a Chapter 13 bankruptcy, which is more complicated than a Chapter 7, but this means that you will likely have to pay back a portion of your debts.

In Chapter 13 bankruptcy, medical bills are categorized with other general, unsecured debts in a consumer’s repayment plan. The amount a consumer must pay general, unsecured creditors depends on income, expenses, and nonexempt assets. Each creditor receives a proportional (“pro rata”) portion of the total amount going towards the debts in the repayment plan. However, consumers can possibly have debt that is too high for a Chapter 13 bankruptcy.

Unsecured debt does not have property or other assets serving as collateral for its payment. Most consumer debt is unsecured. Chapter 13 bankruptcy is only available for consumers who have less than $394,725 total in unsecured debts, though this number changes periodically. Unfortunately, many of the people with debt higher than this cap are people with substantial medical bills. In addition to the unsecured debt limit, consumers must also not have secured debt (debt which has property attached to it as collateral) above $1,184,200 as of April 2016. This most commonly includes mortgages. More often, consumers do not meet the secured debt limit rather than the unsecured debt limit.

Chapter 13 bankruptcy is an option that allows consumers to retain property that they would otherwise lose in a Chapter 7 bankruptcy. What debts are repaid, how much is paid each month, and what happens to debts at the end of a three to five year period is all laid out in a Chapter 13 repayment plan. Though the process of filing for bankruptcy may seem overwhelming, it can help to relieve some of the debt that individuals are struggling to keep up with from harsh medical bills and lack of insurance.

If you are overwhelmed by mounting debt and tired of receiving harassing phone calls from creditors, contact Lawrence & Associates today. We’ve helped hundreds of people overwhelmed with mountains of medical bills, and we can help you obtain that fresh start that you deserve! Call today for a free consultation at (859)371.5997. We’re Working Hard for the Working Class, and we want to help you!


Man Claims to be the CEO of Lawrence & Associates

Posted on Wednesday, March 7th, 2018 at 12:29 pm    

We need your help!

Unfortunately someone in another country by the name of Thomas Lawrence is claiming to be the CEO of Lawrence & Associates on Facebook. According to Facebook’s Community Standards, there is nothing wrong with this person claiming to be our CEO, but it is hurting our firm’s online presence.

From the reviews and harsh messages, we have gathered the following information: Apparently Thomas Lawrence is political in India and is proposing something that has upset a lot of people in the country. Since his Facebook profile says that he is the CEO of our business, a lot of people in India that disagree with what he is doing have left Lawrence & Associates’ Facebook business page over 50 one-star reviews with remarks like: “We hate those who are working against the development of trivandrum..our capital city…proud to be a trivian..” and “Pathetic…As they are a lobby against the Capital of God’s own Country , Trivandrum.” Obviously this has nothing to do with our business here in Fort Mitchell, Kentucky, but Facebook does not see anything wrong with the reviews and is ignoring our request to take them down.

We are asking you, our past and present clients (people who have actually used our services) to please take the time to leave your own review about Lawrence & Associates on our Facebook page in order to drown out these awful reviews that have nothing to do with our company.

They have found our Google page and are leaving bad reviews on Google Maps for us as well. The majority of the bad reviews are on Facebook, but If you could please leave a review for us on both sites that would be great.

Thank you for your time and consideration. Links to Facebook Reviews & Google Reviews are below:


New Bankruptcy Rules

Posted on Wednesday, March 7th, 2018 at 10:37 am    

On December 1, 2017, a series of new Federal and EDKY bankruptcy rules went into effect. Most of these changes are procedural and will not have a direct impact on a clients’ eligibility or decision to file one chapter of bankruptcy over another. However, these changes must be carefully considered and implemented by counsel to ensure clients’ plans are confirmable and successful.

The changes will be applicable to all cases filed on or after December 1, 2017 but shall also be applied to pending cases where appropriate. While vague, the governing rule means that most likely, none of the amended rules regarding deadlines will apply to cases filed prior to December 1, 2017, but the use of new forms and service of process should be implemented into any case immediately.

The new rules that will have the largest impact on greatest number of debtors include:

Rule 3002: The Bar Date

The bar date for non-governmental units, including secured and unsecured creditors, is now reduced to 70 days from the date of the petition. Debtors’ counsel has a duty to ensure that secured proofs of claim are filed in order to protect their secured assets and therefore this much shorter deadline should be monitored closely.

Rule 3007: Objection of Claims

Under the new rules, Debtors’ counsel must follow substantially different guidelines in order to object to a filed claim. The Objection itself must be accompanied by a Notice of Objection to Claim which conforms to Official Form 420B. The objection must be mailed to the person and address listed on the proof of claim.

Rule 3012: Valuation of Claims

Requests for valuation of secured claims may be made by motion, in a claim objection, or in a Chapter 13 plan unless the creditor is a governmental unit. If the creditor is a governmental unit, the request for valuation can only be made by motion following the bar date or claim or through a claim objection. To comply with this Rule, Debtor’s counsel must careful monitor claims and the new, shorter bar date. If any claim is valued in the plan and the creditor fails to file an objection, confirmation will make such valuation binding. Most importantly, Rule 3012 now requires such creditors to be served in such a manner under Rule 7004; this applies to service of the Chapter 13 plan, a Motion for valuation, or a claim objection requesting valuation.

Form 3015-4(b): Adequate Protection

Previously, Adequate Protection payments could be established through the Chapter 13 Plan. Now, a Debtor must file and serve and order for adequate protection with the plan using Local Form 3015-4(b). However, filing an Agreed Order with a creditor after the initial filing can also serve this purpose.

New Local Forms:

There are now established Local Forms (Local Forms 4001-3-1 and 4001-3-2) for a motion and order to obtain credit to purchase a vehicle post-confirmation.

Additionally, avoidance of judicial and non-PMSI liens can now be accomplished through the Chapter 13 plan or by Motion. Local Forms 4003-2(a) and 4003-2(c) are orders that can be recorded with the county clerk to conveniently compel the release of such liens.

The December 1, 2017 changes to the Bankruptcy code, and specifically, Chapter 13 procedures, require debtors’ counsel to careful monitor filed claims and shorter timelines. With the correct routines and procedures put in place in everyday practice, these changes can be implemented easily and prove extremely beneficial to consumer debtors.

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