Recent Blog Posts

What is a Section 32 settlement?

White Plains Personal Injury Lawyer — Thu, 05 Apr 2012 02:57:00 GMT

A Section 32 settlement is a lump sum settlement to settle a New York workers compensation case. Once a claimant enters into a Section 32 settlement a claimant gives up claims for future weekly wage benefits and medical care. A Section 32 settlement is calculated by the claimant's weekly rate multiplied by a certain number of years. The amount of years usually correlate with the claimant's degree of disability.

Under the Workers Compensation reforms of 2007 a claimant is no longer entitled to weekly benefits for life. Since 2007 insurance companies have offered these settlements to thousands of claimaints in the State of New York.

For those claimants who were injured after the 2007 reforms were passed a Section 32 can relieve the uncertainty that the workers compensation system can present. These settlements can also help pay the substantial debts that workers compensation claimants have accrued while recieving limited weekly benefit payments under the workers compensation system.

Are you a claimant who has been offered a Section 32 settlement by an insurance company? Have you been on compensation and would like to explore a Section 32 lump sum settlement? If so, call the Law Offices of Jason B. Kessler 1800-346-6254.

Can I choose another Personal Injury Attorney?

White Plains Personal Injury Lawyer — Wed, 25 Jan 2012 20:46:00 GMT

So you hired a personal injury attorney and you are not happy at the way that their office is treating you. They are not returning your phone calls, not answering your quesitons and ignoring you. What do you do?

Well one answer is to switch law firms. How is that done? Simple... In order to switch attorneys go to the new attorneys office and sign a Consent to Change Attorneys Form and a seise and decist letter. Your former attorneys cannot call you, bother you or even communicate with you.

Another misconception that people have is that if they change attorneys the new attorney gets a third and the old attorney gets a third as well. That is incorrect. If you have one, two or thirty attorneys the fee is always one third. There are just one, two or thirty attorneys vying for that one third.

If your attorney is not giving your case the attention that it deserves call the Law Offices of Jason B. Kessler at 1-800- 346-6254. Our firm prides itself in giving our clients personal attention.

My personal injury case is on for trial... What should I expect?

White Plains Personal Injury Lawyer — Sun, 04 Dec 2011 02:14:00 GMT

What should you expect when your case is tried?

I get asked this question all of the time. My clients have been injured due to the negligence of others. The case has survived motions for summary judgment and has been placed on the trial calendar. After years of depositions, signing authorizations, status phone calls from their attorney it is now time for the case to be tried. So what should they expect?

Here is the good news. There is at least a 66.6% chance that the client will recieve money. There are three things that usually happen in a trial. The case is won, lost or settled. In two out of three scenarios the client obtains compensation.

The amount of the compensation depends on the damages the client has sustained, the percentage of fault assigned to the defendant, the venue and the jury composition.

I would like to take this time to discuss the last two factors venue and jury composition (which can be the most important). The amount that a case is worth varies from venue to venue. Typically, jurisdictions in the outer boroughs of the City of New York such as Bronx, Brooklyn and Queens garner higher payouts then suburbs such as Westchester County and Long Island.

But even in better plaintiff's venues such as the Bronx or Brooklyn the value of the case can be altered by the neighborhood and the composition of the jurors. For some reason, I have found (or assumed) that certain neighborhoods in a particular venue are called at the same time. Depending on the neighborhood the composition of a person's jury could range drastically. Certain neighborhoods are known to be more plaintiff or defendant friendly. And the compensation of a typical jury can vary greatly. While one jury may award a person $40,000 for a severe life altering injury another could award that same person $4 million. Sometimes, there is no rhyme or reason for the difference in outcomes. It is just the composition of the jury.

That is why you need a skilled personal injury lawyer who has picked juries before and knows what to expect when in a courtroom.

If you have been injured, call the Law Offices of Jason B. Kessler at 1-800-346-6254

AIG settles a claim for underfunding its' Workers' Compensation program

White Plains Personal Injury Lawyer — Sun, 04 Dec 2011 01:56:00 GMT

AIG an insurance company that recieved a generous bailout by the federal government, recently settled a claim by insurance company Liberty Mutual Group alleging that it under-reported its' workers compensation premiums that it collected. A $450 million settlement was approved by a U.S. Federal Court Judge. This was reported by Bloomberg.net http://www.businessweek.com/news/2011-07-25/aig-says-450-million-workers-compensation-deal-approved.html.

While insurance companies in New York are constantly complaining that the costs of doing business are too high and about the rates for workers compensation payouts, it seems that insurance giant AIG is making substantial profits and under-reporting the premiums that it collected from its' insureds.

Workers Compensation has been under attack in New York and it is time for citizens to take a stand. In December 2010, the new Workers Compensation Treatment Guidelines were passed and injured workers medical benefits have been substantially reduced. It is now much harder for New York injured workers to obtain the medical benefits that they deserve.

If you have been injured at work contact the Law Offices of Jason B. Kessler at 1-800--346-6254. Mr. Kessler's office is located in White Plains and he represents claimants in Westchester, Bronx, Manhattan, Queens, Brooklyn, Staten Island, Long Island and Rockland County. If you have any questions, help is just a phone call away.

How much is my personal injury case worth?

White Plains Personal Injury Lawyer — Tue, 04 Oct 2011 19:30:00 GMT

So you are injured in an accident. You surf the net and see 5 different lawyers who have great websites. You feel that you have been wronged, you went to the hospital, sustained serious injuries and are damaged. The one question you need to know is"WHAT IS MY CASE WORTH?"

After calling all 5 lawyers and explaining to them your injuries and the facts of the case every lawyer tells you that "I don't know" or "it depends" or "it is too early to tell." Why are they telling you this and what does it mean?

For starters personal injury attorneys are not supposed to make any guarantees. In fact, in most retainers attorneys will tell you that there are no guarantees in litigation. No attorney can tell you how much your case will settle for or what a claims examiner will pay for your case or what a jury will decide.

There are a myriad of factors that may change the value of your case. They include the defendant's insurance limits, the venue, the type of defendant you are suing, your injuries and liability.

INSURANCE LIMITS

One of the most important questions is whether the defendant is insured. If the defendant is not insured most attorneys will not take the case. This is because the defendant will have to pay a judgment out of their own pocket and they may not have deep pockets. If the defendant has insurance, how much insurance do they have. Generally speaking, the limits of insurance is the highest amount that a case is worth. For instance if you were rear-ended by a car with a $25,000 insurance limit. $25,000 may be all that you can recover for your injuries (there are exceptions if you have SUM coverage that exceeds the defendants insurance limits). If the defendant has $500,000 in insurance limits you may be able to recover more.

VENUE

Venue is an important question in evaluating a case. Not all venues are the same. Some venues such as Bronx County are known to be plaintiff friendly jurisdictions where jurors have been known to give plaintff's higher verdicts. Other venues such as Westhcester County are known to be more conservative and jurors have been known to find in favor of defendants more often and give lower plaintiff's verdicts.

YOUR DEFENDANT

Some defendants have a reputation for fighting harder than others. Some insurance companies have a reputation for litigating the case to trial while others prefer to settle. Some defendants have a better reputation in the community while others have a bad reputation. The type of defendant that you are suing factors into the value of your case.

YOUR INJURIES

Probably the biggest factor when determining the value of your case is your injuries. Do you have a serious injury? Did you undergo surgery? How long did you treat with a doctor? Have you made a full recovery?

The more serious your injuries are and the more medical treatment that you went through have a direct correlation with the value of your case.

LIABILITY

Another important factor is liability. In other words, who is at fault for your injuries? Was it all the defendant's fault? Was it partially your fault? Were you wearing a seatbelt when the accident occurred? Were you drunk when you slipped and fell on the stairs? Did the defendant make an illegal right turn? Did the doctor commit malpractice or was what happened to you a risk of the procedure.

All of these factors are important when determining the value of your case. In most cases, it may not be until the end of discovery or immediately before trial until your attorney can determine the value of your case.

If you would like to speak to an attorney about your case, call the LAW OFFICES OF JASON B. KESSLER at 1-800-346-6254. We would be glad to talk to you about your case and what you can expect from the litigation process.

My child got hurt on a school playground l can I sue?

White Plains Personal Injury Lawyer — Sun, 31 Jul 2011 22:38:00 GMT

CAN I SUE MY CHILD'S SCHOOL?

As a personal injury lawyer, I recieve questions from parents whose children were seriously injured at a playground at school. The questions range from "was this playground equiptment safe?" "was it suitable for use for a child my son/ daughter's age?" "wasn't a teacher supposed to monitor my child" "can I sue my school district?"

The question about whether the playground equipment was safe is a tricky question. The Consumer Product Safey Commission completed a study in 1972 finding that playground equiptment were a major cause of serious injuries to children. Since, then much has been done to eliminate hard surfaces and poor drainage that caused many of those injuries. Unfortunately, many school districts have not changed older equiptment or provided padding to surfaces on their blacktops.

Sometimes it is not the fact that the equipment was poorly designed but that is was poorly maintained or misused. There are cases with climbing ropes that were meant to be fastened on both ends that were only fastened on one end or of rusty metal slides with sharp edges, or with old seesaws with loose nuts or bolts. in these cases the school district failed to keep equiptment safe for children.

Another question is whether the equipment was suitable for your child. Equipment that is suitable for a 9 year old may not be suitable for a 4 year old. Signs should be prominently posted that state the appropriate age of children to use the equiptment.

Sometimes, it is the failure of a teacher to properly monitor the students. Perhaps a teacher should have monitored the child who fell off the monkey bars or the child who improperly slid down the slide. In those cases, experts need to be brought in to determine the appropriate level of supervision.

Finally, the question is whether I can sue my school district? In order to sue a school district in NY a Notice of Claim needs to be filed within 90 days of the occurrence and a suit needs to be commenced within one year. Suits against school districts are very tough and judges are protective of school districts. Therefore, you need to obtain a lawyer who has successfully sued school districts.

If your child has been injured on a school playground call the Law Offices of Jason B. Kessler at 1800-346-6254. Mr. Kessler is an advocate for children who are injured due to the negligence of others. He is an aggressive litigator and has taken on New York school districts.

Medical Malpractice... What is it?

White Plains Personal Injury Lawyer — Fri, 08 Jul 2011 01:02:00 GMT

Medicine is not an exact science. Sometimes you go to a doctor and something bad happens. Perhaps it is the fault of the doctor? perhaps it is a risk of the procedure? perhaps it is a latent disorder that you did not know about?

When is it malpractice?

Malpractice is when a physician/dentist/ medical professional has a duty to treat you, breaches that duty and the breach caused you damages.

The two most heavily litigated areas of malpractice have to due with whether the medical professional breached the standard of care and causation.

What is the standard of care?

The standard of care is whether the medical professionals performance was below the standards set in his/her particular medical specialty by the medical community. The standard of care varies according to the speciality of the defendant medical professional and the procedure that they tried to perform. In order to bring a medical malpractice case in New York a lawyer has to retain an expert who opines that the Defendant medical professional breached the standard of care.

What is causation?

Not only does the plaintiff have to show that the defendant medical professional breached the standard of care, they have to show that the breach was the cause of their damages. Just because a doctor leaves a sponge in your stomach does not mean that you are a victim of malpractice. It is only if the sponge caused you stomach problems would the doctor's breach be malpractice.

Damages mean that the plaintiff suffered injuries that resulted from the defendant's breach. This means that the plaintiff has to have suffered actual harm. Meaning a disease, disorder, loss of a body function, necessity of surgery or something that caused them serious permanent harm.

If you were injured as a result of medical malpractice, contact the LAW OFFICES OF JASON B. KESSLER at 1800-346-6254. Our office is experienced in handling medical malpractice matters and have obtained results for our clients.

Summary Judgment- What is it? What does it mean?

Jason B. Kessler — Thu, 19 May 2011 00:47:00 GMT

So you have met with your lawyer, signed pleadings, signed medical authorizations, called him/her a million times, attended a deposition and agreed to a demand. You understood that your lawyer has placed your case on the trial calendar. All of the sudden, your lawyer calls you up and tells you that the "Defense has filed a motion for summary judgment".

What does that mean?

Summary Judgment means that the defense counsel believes that based on the evidence produced during discovery that there is no issue of fact that should be determined by a jury. In fact, a Judge should dismiss your case because there is no issue of fact.

So what happens next? Your lawyer (who should have already disclosed that you had an expert to the Defense Counsel) will get an expert affidavit/affirmation stating that indeed there is an issue of fact that should be decided by a jury. In a medical malpractice case that issue of fact may be whether the Defendant Doctor committed malpractice. In an automobile case it may be your treating physician stating that your injuries do meet the serious injury threshold required for automobile cases. In a premises liability case it may be a meteorologist who will state that it was not snowing at the time you slipped and fell or an engineer who will state that the Defendant created a dangerous condition.

Your attorney may wish to have you sign an affidavit attesting to the fact that you were not able to work for x period of time or you were not told something by the Defendant doctor.

Finally, your attorney will oppose the motion. Hopefully, the defendant's motion will be defeated and you will get your day in court.

If you have any questions about your personal injury case. Call the Law Offices of Jason B. Kessler at 1-800-346-6254.

Why your insurance policy is important? UM/ SUM

Jason B. Kessler — Mon, 02 May 2011 23:54:00 GMT

Many people are injured in car accidents in the New York-area. Not surprising considering the amount of traffic, old roads and dangerous drivers.

After being seriously injured in a car accident, many victims believe that they will be entitled to a large sum of money to compensate them for their injuries. Frequently, they are surprised and saddened to learn that the car who hit them had a small insurance policy that will not cover their needs.

In NY the minimum insurance policy that a driver is allowed to have is $25,000. However, such a policy does nothing to protect personal assets if you get sued and if you are injured that policy will not provide you with the protection that you need. What is the solution? Uninsured and Supplemental Underinsured Motorist policies called UM or SUM coverage. Such coverage provides the accident victim with extra coverage if his/her injuries are in excess of the amount of insurance that the negligent driver carries.

So what happens if you do carry such coverage? If you carry UM or SUM coverage in excess of the limits of the car that hit you, then you must first alert your insurance carriers UM or SUM department AS SOON AS POSSIBLE. Then after confirming that the department received notice, you must obtain a UM or SUM file number.

In order to trigger the UM or SUM coverage you need to make sure to obtain the full policy of the negligent driver AND make sure that the UM or SUM claims examiner at your insurance company consents to your settling the underlining case.

After you have obtained permission to settle and you have obtained the negligent driver's policy, you can arbitrate with your insurance carrier. The arbitration process includes submitting a memorandum of law to the arbitrator, securing evidence to present on your behalf and appearing for arbitration. Sounds like a lot of work? It is!

That is why you need to contact a competent attorney as soon as possible.

If you have been injured in a car accident contact the Law Offices of Jason B. Kessler at 1-800-346-6254. We have a proven track record for success and are not afraid to take a case to trial.

Can I sue the City? Can I sue the State? Important things to know when suing a municipal defendant.

Jason B. Kessler — Sun, 10 Apr 2011 17:54:00 GMT

What happens when you slip and fall on a sidewalk in your Town, City or Village in New York due to the negligence of that municipality? What happens when your Kindergardener falls off monkey bars that clearly state 8 years and up during their physical education period? What happens when you slip and fall in between an extra wide gap when boarding your subway or train? Who do you sue? How do you sue them?

Unlike a private defendant Municipal Defendants such as The City of New York, State of New York; School Districts such as the Mt. Vernon School District, Yonkers School District or New York City Board of Education; and Public Authorities such as the MTA, NYCTA or Metro North Railroad require special conditions precedent before you can sue them.

According to New York Law you need to make a Notice of Claim (Cities, Educational Departments, Public Authorites) or a Notice of Intent to Sue (The State) within 90 days of the date of the accident. The Notice of Claim or Notice of Intent to Sue needs to be sent by certified mail or served like a summons to the correct office that is responsible for receiving such notice. If you fail to do so you can be barred from suing those entities.

The notice of claim also has to give the municipal entity enough information so that they can do a good faith investigation of the place that you fell. Photographs, accident reports and other identifiable information must also be given to the municipality.

After the Notice of Claim was served on the municipality, that municipality can make you do a pre-suit deposition where an attorney for the municipality can ask you questions under oath regarding your accident.

After you have completed the deposition you can sue within 30 days.

You should also know that you have an extremely limited time to sue the municipality. In some instances you have one year and ninety days (City of New York), some instances one year (Public Authorities) sometimes even less.

If you believe that you or a loved one was injured due to municipal negligence you need to call a lawyer fast. Call the Law Offices of Jason B. Kessler at 1-800-346-6254. Mr. Kessler has experience in dealing with municipal litigation and was a former Assistant Corporation Counsel with the City of New York.

What is a Section 32 Workers Compensation Settlement?

Jason B. Kessler — Wed, 23 Mar 2011 01:13:00 GMT

New York Workers' Compensation is a complicated and difficult administrative system that is difficult for claimants to navigate. A typical workers compensation claimant has to go through years of litigation, varied medical treatment, several workers' compensation hearings and insurance company examinations. This can leave a claimant depressed, angry and looking for closure.

In NY only one type of settlement can give a claimant true closure... that is the Section 32 settlement.

What is a Section 32 settlement? It is a final settlement that involves the claimant, the carrier and the workers compensation board. Unlike other types of settlements there is no appeal from a Section 32 settlement and once such a settlement is approved (and the 10 day waiting period has expired) the case cannot be reopened.

Why should a claimant take a Section 32 settlement? There are many different reasons why a claimant should accept a Section 32 settlement. Maybe the claimant has finished treating and would like to move on with their lives? Maybe the claimant would like to move to a different country? Maybe the claimant needs a lump sum settlement for financial purposes?

There are dozens of other reasons why a claimant should take a Section 32 settlement.

There are also reasons that a claimant should think twice about taking such a settlement... If the claimant needs imminent medical treatment such as surgery then a Section 32 settlement may not be the best settlement.

What a claimant is receiving Social Security Disability?

If a claimant is receiving Social Security Disability Benefits and will likely receive Medicare benefits within the next 36 months, then a portion of the settlement will go to the Medicare Set Aside. A Medicare Set Aside is an amount of money that a claimant has to set aside for treatment in a Health Care Trust Savings account. Medicare will then ask for an accounting of that money before the claimant can use their Medicare card for medical benefits. This money is taken out of the settlement and must be segregated from the claimant's lump sum settlement.

If you are a claimant and an insurance company has offered you a Section 32 settlement or you have an ongoing workers compensation claim and would like to explore such a settlement call the LAW OFFICES OF JASON B. KESSLER at 1-800-346-6254.

We will be happy to answer any of your questions and we provide free consultations.

What do I do after an accident?

Jason B. Kessler — Thu, 03 Mar 2011 02:08:00 GMT

It might sound strange. But what a person does immediately after an accident can make a difference as to whether they recover any compensation for their injuries.

First, make sure that you are aware of where you fell. Make notes as to the place that you fell. Take pictures with your cell phone or get a friend or relative to take pictures with a cell phone. If there was a crack in a sidewalk, hole in the ground, pothole or something unexpected take a picture of that defect immediately!

Second, get a police accident report, ambulance report, AIDED report (non-car accident reports). A defendant, jury or insurance carrier is more likely to pay you money if you have a report from someone whose job it is to take down important information regarding an accident .

Third, get the names and numbers of witnesses. This is crucial. Uninvolved witnesses who are not related to you or friends of yours are seen as reliable witnesses by defendants, juries and insurance carriers.

Fourth, Go Make an Appointment to See a Lawyer! Immediately after an accident, insurance carriers send out adjusters, investigators or claims agents to investigate your claim. Without legal representation you may say something that could severely jeopardize your claim.

If you have been recently injured in an accident contact The Law Offices of Jason B. Kessler at 1-800-346-6254. We will return your call as soon as possible and make hospital, home and nursing home visits. The consultation is free and we receive no fee unless we win.

Do I have a personal injury case?

Jason B. Kessler — Wed, 16 Feb 2011 04:07:00 GMT

A question that I frequently get from clients is do I have a case? Most of the time my answer is that it depends. What they are really asking me is whether they have a case that I would accept.

In order to evaluate whether or not a potential client has a case worth investigating, I have to determine a) what are the injuries? b) what is the liability? c) what evidence is needed to prove the case? d) who is the client? e) what is the venue and lastly f) when will the statute of limitations run.

Injuries

Perhaps the greatest determining factor that I use when deciding whether to take a case is the nature and extent of a client's injuries. When evaluating a clients injuries I ask whether they broke or tore a part of their body, whether they need surgery, what is the frequency of their medical treatment, do they have a permanent injury or a permanent limitation and lastly, would an objective observer (judge or a juror) find their injuries significant.

Liability

This means whether the person who has wronged them is legally at fault. This is a legal determination in which I ask did the person who caused the harm have a legal responsibility to the potential client and did they breach that responsibility. For instance, did a landowner have the duty to make that walkway safe, or did that doctor have a duty to perform a certain test, or did the motorist who crashed into my client's car have a duty to maintain a safe driving distance from my client.

Evidence

When evaluating a case, I ask what kind of evidence will be needed to prove the case. Is the evidence readily available? What does the evidence that I have know show? How can I get the evidence? How hard will it be to get the evidence? Lastly, how hard will it be to prove the case? The harder the case is to prove the less likely that I would take your case.

Who is the Client

A potential client has to appeal to a jury or judge. Is the client likable? Sympathetic? Can the jury relate to the client?

Venue

Certain venues are better than others. Juries in some venues are known to be very generous where juries in other venues are known to be very conservative. This can make a huge difference in the value of the case and a factor that every personal injury lawyer has to take into account.

Statute of Limitations

How much time do I have to do a proper investigation of the case? How long do I have to institute the lawsuit. Will I be able to do a proper investigation before placing the case into suit.

I hope that this has answered some of your questions regarding whether you have a personal injury case. If you would like a professional opinion as to whether you indeed have a case, please feel free to call the Law Offices of Jason B. Kessler at 1-800-346-6254. Our firm serves New York clients who are seriously injured.

Potholes, Potholes Everywhere!

Jason B. Kessler — Tue, 08 Feb 2011 01:35:00 GMT

Tis the season for potholes... Along with snow and ice, potholes seem to be popping up everywhere this winter. Recently, drivers on the Henry Hudson parkway learned the hard way about the damage that potholes can cars. Dozens of cars ran over a huge pothole on the northbound lane near Dykman Street and suffered massive damages to their tires, rims and suspension.

The question is who will pay for these drivers property damage? Was The City of New York negligent?

The answer is that it depends... If The City knew about the pothole and had "a reasonable time" to fix the pothole then they had "notice of a dangerous defective condition". If however, no one reported the pothole to The City then they would not have notice and the drivers cannot recover.

The City also has a duty to warn of a dangerous condition with orange cones, flares, signs or anything that may alert a driver to steer clear of the pothole. If the driver had sufficient warning and still hit the pothole then The City is not liable.

If you have been injured in an accident due to a pothole call the Law Offices of Jason B. Kessler at 1-800-346-6254. We will investigate the facts and circumstances surrounding your case and aggressively pursue your rights.

I got hurt at work can they fire me?

Jason B. Kessler — Thu, 27 Jan 2011 02:49:00 GMT

One of the most frequent questions that I get from my workers' compensation clients is whether they can get fired while on workers' compensation. Sadly, the answer is yes. An employer can fire you when you are on workers' compensation they just can't fire you for applying for or being on workers' compensation. Under Workers Compensation Law Section 120 there are penalties and fines levied against an employer for such discrimination.

However, if your employer has a non-discriminatory reason they can fire you for such reasons as "we needed to fill the position", "your FMLA ran out (which I will get to later)", or "we eliminated your position." It is up to the claimant to prove that the employer's reason was untrue and that they really discriminated against them. Such proof can be difficult to obtain and Section 120 cases are difficult to prosecute.

What about FMLA?

FMLA or the Family Medical Leave Act allows certain employees 12 weeks of unpaid medical leave for "a serious health condition that makes the employee unable to perform the essential functions of [their] job."

This means that for this period of time your employer has to let you keep your group health coverage and cannot eliminate your position. However, if you are still disabled after that period of time your employer can terminate you.

If you have any questions about your Workers' Compensation claim call The Law Offices of Jason B. Kessler at 1-800-346-6254. We would be happy to answer any of your questions.