Jury Links Commonly Used Talc Powder To Ovarian Cancer

A federal jury has found that talcum contained in Johnson & Johnson powder products contributed to a woman’s ovarian cancer.  The jury found on that Johnson & Johnson failed to warn consumers of the link between ovarian cancer and the use of talc-based body powder for feminine hygiene.

Deane Berg, a resident of Sioux Falls, who was diagnosed with ovarian cancer in 2006, filed the lawsuit. The 56-year-old berg used talcum-based products for hygiene purposes for about 30 years, including J&J’s shower to shower body powder.

Attorney R. Allen Smith, Jr., one of Berg’s lawyers, said his client never would have used the products in the manner she did if she had seen a warning.  “The first time she heard about the risk was after her diagnosis,” Smith said.  Smith of Ridgeland, Mississippi, filed the very first talcum ovarian cancer lawsuit in 2009.

The verdict comes shortly after the Mississippi Attorney General’s office launched an investigation into Johnson & Johnson’s promotion of talcum powder products used for feminine hygiene.

The jury did not award Berg monetary damages nor did it agree that Johnson & Johnson’s products are defective without a warning label

Medical Studies Link Talcum Powder to Cancer Risk

A recent study conducted by Dr. Margaret A. Gates and funded by the National Cancer Institute and the National Institutes of Health, focused on talc ovarian cancer, found a 36-41% increase in ovarian cancer related to use of talc.  The study advised women to immediately stop using the product.

A June report published in the medical journal cancer prevention research, and based on data collected covering about 2,000 women, found that women who use powder containing talc may have a 20% to 30% greater risk of ovarian cancer.

Medical Experts Testify

Mr. Smith is working with the two of the foremost medical experts on the subject of talc and ovarian cancer (Daniel Cramer, MD and John Godieski, MD).  Dr. Cramer, who has studied the connection between talc and cancer for 30 years told jurors that talc probably was a contributing factor in 10,000 cases of ovarian cancer each year.

Doctors analyzed berg’s cancer tissue, found talc using a scanning electron microscope and concluded that body powder was the cause.

Attorneys To Expand Talc Related Cancer Investigation

This talcum powder lawsuit may be first of many other talc related cancer lawsuits that are to be investigated and filed by attorney Smith and his associated group, the Talc Litigation Group.

Talc Products Affected

Numerous other talc products are impacted by the lawsuit;

•Johnson’s ® baby powder

•Shower to Shower® absorbent body powder

•and all other talcum powder products.

What Do I Do If I Think I May Have Been Injured?

Regardless of where you live, contact Chhabra & Gibbs P.A. to review your case and ensure that you are properly evaluated by a qualified medical expert.

No Mississippi Nursing Home without Violations Since 2010

Of Mississippi's 205 nursing homes, not one has had a clean safety record in the past three years. Since 2010, nursing homes in the state have amassed over 4,500 violations from the U.S. Centers for Medicare and Medicaid Services.

It should be noted that these numbers reflect facilities that accept Medicare and Medicaid, however, not all nursing homes do. Facilities that are not certified to accept federal assistance programs are typically very small, private homes. Mississippi's long-term-care ombudsman, a post in the Department of Human Services, stated that the state's systemic failure is the result of low wages and inadequate training among nursing home personnel.

She further stated that many employees of Mississippi nursing homes make minimum wage, with no benefits, and could often make more at local casinos. Certified nursing assistants, for example, make an average of $24,600 a year in Mississippi, which is more than a fast food cook but less than a blackjack dealer at a casino.

Nursing homes that accept Medicare and Medicaid are subject to inspections at least once per year, along with unannounced inspections if there are any complaints filed. Facilities are also required to promptly report all incidents, no matter how seemingly trivial, to authorities. Certified nursing assistants must undergo and pass a 100-hour training course to be employed.

Overall, Mississippi nursing homes average about eight violations per nursing home. In the most recent Nursing Home Report Card, issued by the advocacy group Families for Better Care, the state earned a "D."

The systemic pattern of health and safety violations can have dire, often gruesome consequences for the state's elderly. In November 2010, an employee at Highland Home in Ridgeland, Mississippi found a resident hanging from her wheelchair's lap belt by the neck. The patient had low muscle tone and poor cognitive skills, and the belt's manufacturer specifically warned against its use in patients with these ailments.

The resident survived that incident, after which the facility switched her to a crotch restraint, despite manufacturer's recommendations that it be used only for patients with adequate posture. On New Year's Eve 2010, the same resident was found hanging from her wheelchair from the crotch restraint; the staff made no changes to her care plan and continued using the restraint, without regular monitoring.

At least three other residents at Highland Home suffered similar incidents, suggesting a pattern of inadequate monitoring and negligent care plans. Other serious problems noted at Highland are common among other nursing homes throughout the country: staff dropping residents while moving them, failing to follow physician's orders, unnecessary sedation, isolation and theft. Highland racked up $635,000 in 2011, the highest of any facility in Mississippi.

The most common violation in Mississippi was failure to control the spread of infection in nursing homes, with nearly 315 violations. Second was failure to keep adequate clinical records. Golden Age Nursing Home in Greenwood has the highest number of deficiencies in the state, with 53 since 2010. Six violations occurred in 2012 after an employee was caught stealing residents' painkillers.

I’m hurt but I want to Keep my Job

Unfortunately, many people who decide to hire a lawyer in a workers’ compensation case wait until something bad happens.  Quite often, people wait until they are terminated before seeking a free consultation.  This is a big mistake.  Unfortunately, in Mississippi, you cannot sue your employer for wrongful termination that arose out of a workers’ compensation claim.  There is some good news though.  If you get fired after a workers’ compensation injury, it provides you with valuable evidence to help make your claim for permanent disability but there are certain things that you must do to establish this claim effectively.  You should consult an attorney immediately if you have been terminated to help preserve all rights you may have. 

If you get a lawyer soon after your injury, sometimes the attorney can take certain measures to help protect your job.  People naturally feel that lawyers will make things worse, but our experience is that this is not the case.  If you are loyal to your employer and like your job and if you feel the insurance company is paying you all the benefits you are entitled to, you should get some advice immediately BEFORE things start to get bad.  If you wait until things get bad, it is usually too late.  When all the correct steps and measures are taken, you will be in the best position to protect your job and protect your relationship with the employer that you are loyal to.  More importantly, you will be in the best position to protect your rights.       

Rogen K. Chhabra

Can I choose my Own Doctor?

Yes, but hurry.  The recent change to the Workers’ Compensation Act takes away the right to choose your own doctor if you treat with the company choice for more than 6 months or if you have a surgery.

Many times when people are hurt on the job, they are sent to the company doctor.  What people don’t realize is that they are entitled by law to choose their own physician and the company has to pay for it.  Companies will often ask you to sign a form saying that you accept the company doctor as your choice.  Signing this form is a mistake.  People are often fooled into thinking that they will have to sign the form to get treatment.  This is simply not true.  If the company wants you treated by the doctor of their choice, they have to pay for it and you don’t have to accept that doctor as your choice of physician.  You can reserve your right to go to your choice of physician as long as the treatment provided is reasonably and medically necessary. 

Companies will often also pay a nurse to go along with you to your doctor visits.  These are called “nurse case managers.”  You have the right to seek treatment by a doctor without interference in your so-called “management” by a company paid nurse.  If you have been asked to sign a choice of physician form or if a nurse has been going along to your appointments with you, you should consult an attorney immediately to determine what your rights are and to help make sure that you get the best available medical treatment paid for by the company. 

Rogen K. Chhabra 

How many weeks am I entitled to be paid if I get hurt at work?

There are two types of disability payments, temporary and permanent.  The law allows up to 450 weeks of payments total up to the state maximum for the year of the injury.  The maximum for an injury occurring in 2013 is $202,104.  The benefits generally start as weekly or bi-weekly checks until the temporary period ends and the permanent period begins.  The change from temporary to permanent usually occurs when a person reached Maximum Medical Improvement (MMI).  This is normally determined by the treating physician when they feel that treatment has reached a plateau (unfortunately this does not always mean complete healing and leaves a permanent disability).

There are also two types of permanent injury.  The first is known as scheduled member.  This would be a body part like an arm, leg, finger, eyeball, etc.  The second is whole body.  This would be like the head, back, neck, brain, etc.  If you have a permanent injury, the way it is paid is completely different in a scheduled case than a whole body case. 

Some differences:

In a scheduled member case, even if you go back to work without restrictions, you will be entitled to minimum compensation if you have an impairment rating assigned by a doctor.  There are no minimums in a whole body case even with a severe rating.

In a whole body case the restrictions and ability to return to work will be the more important factors in determining loss of wage earning capacity which equates to compensation.

Whole body cases are limited to 450 weeks, while scheduled member cases are limited to 200 weeks of compensation, or less, depending on the body part that is injured.

Some similarities:

Often a check for permanent disability looks exactly like a check for temporary disability.  The weekly benefit amount does not change.

Also, it is possible to get permanent disability in a lump sum all at one time, but the way to go about it depends on the type of injury.

These concepts can be difficult and legalistic.  You should expect your insurance company to be nice in hopes that you don’t get armed with legal advice from an experienced lawyer.  You should NOT expect your insurance company to give you accurate legal advice as to what your permanent disability claim is worth.  You should never try to navigate through these issues without getting some free advice on what it is really all about and how it applies to your particular case.

Rogen K. Chhabra 

I fell and hurt myself on a property isn’t the owner/operator at fault? Actually, you could be wrong.

Just because you slipped or tripped and fell on someone's property doesn't mean that they are automatically responsible for your injuries. In a slip and fall case, the law requires you to show that the business or property owner knew or should have known about the dangerous condition before the accident. If you are unable to show that the business or property owner knew or should have known about the condition on the property, your case can be dismissed. Proving that an owner should have known (i.e. had constructive knowledge) about a dangerous condition is usually difficult.

In order to assist in showing constructive knowledge, you should immediately take these simple steps to preserve evidence: 

• Immediately report the accident and the dangerous condition to the property owner, store manager, or other person in charge.

• Be sure to identify cameras in the area. The presence of cameras may be helpful to you case in that they can be used to help determine how long a substance has been present.

• Use your phone to take pictures of dirty tracks, footprints or anything that helps to show that substance had been on floor for an extended period. If you are unable to photograph the condition, be sure to take extensive notes about the size, shape, color and location of the substance.

• Identify where the closest employee would have been stationed in comparison to the substance.

• Obtain the names and addresses of anyone who may have witnessed the fall.

If you or a loved one has been injured in a slip and fall, contact our office for a free, confidential consultation.

Ashley L. Hendricks

How long do I have to wait to get workers’ compensation benefits after I have been hurt and how much should I be getting per week?

You are entitled to medical benefits immediately.  If you miss more than 5 days of work then you are also entitled to compensation while you are off work.  You will generally be entitled to 2/3rds of your average weekly wage up to the state maximum for that year.  The state maximum for an injury occurring in 2013 is $449.12.   Figuring out your average weekly wage is not always an exact science but it should be fair to the worker.  It includes wages, overtime, mileage, per diem’s, housing or any other form of compensation averaged over the previous year prior to the injury.  If you worked there for less than one year than the average would be over the period that you actually worked. 

The first check is due within 14 days of the first missed day, and the insurance carrier should not ever get more than 14 days behind.  Sometimes a carrier will pay every week and then decide to go to every two weeks.  That is within their right under the law so long as they are staying within 14 days of the last paid day.  If they fail to pay on time, there are mechanisms in the workers’ compensation laws to get the case in front of a Judge relatively quickly to get the issue heard.

If you or a loved one has been hurt, you should contact an attorney to make sure you are being paid the right benefits.

Rogen K. Chhabra

I was hurt at work and the company doctor is not helping. What are my rights?

First, you have a right to a choice of physician if you have not already made one, unless you treated with the company choice for more than 6 months or had a surgery.  Miss. Code Ann. § 71-3-15 requires an employer to furnish any and all medical treatment necessary for recovery of the work related injury.   As the injured employee, you have the right to accept the services of a doctor recommended by your employer; or you may exercise your right to select a competent doctor of your choice. 

The workers’ compensation carrier can force you to go to the doctor of their choice for a one time evaluation, but not to treat-just to be evaluated for temporary or permanent disability.  The carrier can also have a doctor evaluate the medical treatment being rendered.  This type of examination is referred to as an employer medical examination or “EME”.

However, you can also ask the Mississippi Worker’s Compensation Commission to have you examined by a doctor independent of both you and the employer.   This independent medical examination or “IME” is usually ordered when the commission has the opinion that a doctor has not correctly estimated the degree of permanent disability or the extent of the temporary disability of an injured employee.  When you have been steered around by a company who didn’t tell you that you had a choice, and when you failed to take action until it was too late, this may be your only saving grace to get a legitimate and fair opinion from a doctor.

If you or a loved one has suffered a work place injury and has a question about rights to medical treatment, feel free to contact us for a free consultation.

Candace G. Mayberry

GRANUFLO AND NATURALYTE LAWSUITS

On March 29, 2012, the Food and Drug Administration (FDA) issued a recall of GranuFlo and NaturaLyte.  These products were manufactured by Fresenius Medical Care and were used to treat kidney disease and kidney failure.  According to the FDA, the use of these products could lead to low blood pressure and cardiac arrhythmia. 

Fresenius was aware of these dangers, but did not share that information with health care providers or consumers.  These products were used in numerous dialysis facilities, not just those owned by Fresenius.

Several hundred cases involving GranuFlo and NaturaLyte have been consolidated into Multi-District Litigation in the United States District Court for the District of Massachusetts.

If you or a loved one has experienced a sudden cardiac event during or soon after dialysis treatment, please give us a call to learn more about your legal rights.

Teresa E. Harvey

What is the difference between federal and state court for my personal injury action?

Federal Courts only have jurisdiction over personal injury claims when “diversity” between the parties exists.  Diversity is all about what state each party resides in.  Diversity jurisdiction exists where all defendants are from different states than all plaintiffs and the amount in controversy exceeds $75K. If a party on opposite side is from the same state, diversity is destroyed. However, persons on the same side may be from the same state.   If no diversity exists, then the case belongs in State Court.

When filing a claim where diversity exists, state court is still a viable place for the injured person to choose, and most often they do.  It then becomes the Defendants’ right (if they all agree) to transfer it to Federal Court.  Deciding where to file is not always an easy task.

Advantages to federal court:

·         Process is more streamlined, usually moves faster than state court.

·         Electronic filing in all Federal Courts but only in some state courts – this saves on expenses.

·         You get pre-disclosure of information up front before the lawsuit really gets going so you know better what the issues are.

·         Federal courts tend to be less tolerant of delays from either side, and delay is not what plaintiffs want.

·         Settlement conferences almost always are offered and usually encourage settlement for smaller cases.

Disadvantages to Federal Court:

·         You have to get all 12 jurors to agree on verdict in Federal Court whereas in State Court you only need 9.  This makes it tougher to get a verdict in Federal Court.

·         Deadlines are stricter and sometimes easy to miss, which in some case can end a case.

·         Most motions require supporting memoranda, which means a lot more work has to be done causing expenses to be higher.

·         Discovery is usually limited in terms of how many people can be deposed or how many questions can be asked, which makes it tougher to get the information you need sometimes.

Another difference between State and Federal Court is that Federal Judges are appointed by the President of the United States while State Court Judges are elected by the people of their local district.  This does not necessarily mean one side or another would prefer a particular Court, but for the most part, Defendants tend to prefer Federal Court while Plaintiffs tend to prefer State Court when all the factors above are considered.

If you have a question about your civil case and which Court system it could or should be in, please give us a call for a free consultation at 601-948-8005.

Ashley Hendricks

I got hurt while working on the water. What do I need to know?

In short, the name of an experienced attorney.  Injuries that occur at work for those men and women who work on or around the water can be broken into two classes of cases: Longshore and Jones Act.  Undoubtedly, you've seen attorneys advertise on television about Longshore and Jones Act cases, but what are they?  How are they different from one another?  More importantly, how do they affect you?

The Longshore and Harbor workers' Compensation Act (Longshore for short) is a federal law that requires employers to purchase and carry workers' compensation insurance - the purpose of which is to ensure that injured workers are compensated for their injuries.  Longshore applies to land-based individuals who work on or around the navigable waterways of the continental United States, but spend less than 30% of his or her work time aboard a vessel or company-owned fleet of vessels.  The period for filing a claim is one year from the date of injury or death, and must be filed with the Longshore and Harbor workers' Compensation Commission.  Benefits under the Longshore Act include payment of medical bills that relate to the injury, as well as disability or "indemnity" payments.  These payments are calculated based on 2/3 of your average weekly wage and include temporary partial, temporary total, permanent partial and permanent total disability.  The downside to a Longshore case is that there are remedies for which an injured employee will not be eligible, i.e. pain and suffering, punitive damages, etc.; however,  the upside is that proving a Longshore case requires only "more than a mere scintilla" of evidence.  Universal Camera Corp. v. NLRB, 340 U.S. 474, 477 (1951).   

 The Jones Act, also a federal law, applies to those workers who spend at least 30% of their time working aboard a vessel.  For purposes of the Jones Act, these workers are called "seamen."  If a seaman is injured while on the job, as a result of the negligence of his employer or fellow employees, the Jones Act will allow that worker to file a lawsuit and have his claim heard in front of a judge and jury.  The period for filing a Jones Act claim is three years from the date of injury or death, and can be filed in state or federal district court.  If successful in his claim, the seaman is entitled to monetary compensation for lost wages, medical expenses, pain and suffering, and future damages.  The standard of proof is higher than a Longshore claim, but lower than what one would face in a regular negligence cause of action.

If you or a loved one has been hurt while working on the water, feel free to give our office a call.  We can assist in making sure that your rights are protected.        

Seth Thompson

My employer accidentally spilled grease on the floor and I slipped on it. I am hurting a lot. Can I sue for pain and suffering?

No.  You have a workers’ compensation claim and a workers compensation claim only.  The law says this:

                       

§ 71-3-9. Exclusiveness of liability

  The liability of an employer to pay compensation shall be exclusive and in place of all other liability of such employer to the employee, his legal representative, husband or wife, parents, dependents, next-of-kin, and anyone otherwise entitled to recover damages at common law or otherwise from such employer on account of such injury or death, except that if an employer fails to secure payment of compensation as required by this chapter, an injured employee, or his legal representative in case death results from the injury, may elect to claim compensation under this chapter, or to maintain an action at law for damages on account of such injury or death. In such action the defendant may not plead as a defense that the injury was caused by the negligence of a fellow servant, nor that the employee assumed the risk of his employment, nor that the injury was due to the contributory negligence of the employee.

“Exclusive” liability is a fancy way of saying the only thing an employer has to provide for workplace injury is workers compensation coverage.  That means, medical treatment, compensation for time of work, and compensation for lost wages in the future or loss of use of a body part.  Pain and suffering cannot be recovered.  If the employer is supposed to have insurance coverage and fails to do so, it changes the game.  It opens up the possibility of making a fault claim (although most general liability policies exclude employees).  If you find yourself in a situation which way to go and whether fault may be an issue, contact an attorney with workers’ compensation experience and get free advice.

Rogen K. Chhabra

I got hurt while working for a subcontractor. Come to find out, he did not have workers’ compensation insurance. Am I just out of luck?

Not necessarily.  The law states:

                  

§ 71-3-7 (6) In the case of an employer who is a subcontractor, the contractor shall be liable for and shall secure the payment of such compensation to employees of the subcontractor, unless the subcontractor has secured such payment.

What this means is you go “up the chain” to whoever hired your subcontractor employer to see if there is coverage.  Sometimes there may be several subcontractors and contractors with coverage, and it will take some sorting to figure out which one is responsible.  If you are caught in a situation like this, you should consult an attorney experienced in this area before you give up.  Just because they told you they don’t have insurance does not mean you have no option.

Rogen K. Chhabra

My legislator said he voted to make our workers compensation laws better for the people of our state, is he telling the truth?

No, the new laws do not help the worker at all.  One major change that was made is a new law was written to say:

§ 71-3-7  In all claims in which no benefits, including disability, death and medical benefits, have been paid, the claimant shall file medical records in support of his claim for benefits when filing a petition to controvert. If the claimant is unable to file the medical records in support of his claim for benefits at the time of filing the petition to controvert because of a limitation of time established by Section 71-3-35 or Section 71-3-53, the claimant shall file medical records in support of his claim within sixty (60) days after filing the petition to controvert.

Prior to this law, anyone had access to the court system for workers’ compensation claims.  Now you either have to hope and pray the insurance company does the right thing and accepts the claim, or you have to go out and pay for medical records and find a doctor willing to say that your symptoms were caused by a work injury.  Often this is difficult early on because not enough information is known about the injury early in the process, and unless you can afford your own treatment you can’t get what you need to prove that the injury was work related.  This is a bit of a chicken before the egg problem that will prevent a new class of people who cannot afford their own doctor from having access to the Court system. 

It is unfortunate that our lawmakers saw fit to pass a law like this, and we expect to see challenges to the constitutionality of the law in the future.  In the meantime, if your claim is being denied by an employer or workers’ compensation carrier, you should seek legal advice from a reputable workers’ compensation lawyer to see how you are affected by this new law and what your options are.

Rogen K. Chhabra
For questions about this or any other area of the law, visit our website at www.cglawms.com or call our office at 601-948-8005 for a free confidential consultation.

When exactly are you entitled to Workers Compensation benefits

The technical law states that:

§ 71-3-7. Liability for payment of compensation

   (1) Compensation shall be payable for disability or death of an employee from injury or occupational disease arising out of and in the course of employment, without regard to fault as to the cause of the injury or occupational disease. An occupational disease shall be deemed to arise out of and in the course of employment when there is evidence that there is a direct causal connection between the work performed and the occupational disease.

In English, what this means first and foremost is that fault is not an issue, and that it only matters whether you were in the scope of employment at the time of the injury.

We talk to client everyday who spend most of their time explaining everything the employer did wrong that led to the injury.  We listen, but unfortunately, unless it was intentional it makes no difference because fault is simply not an issue.  If you get hurt at work for a covered employer, you get benefits.  It’s that simple.

Scope of employment is not so simple.  There are cases where you could be off the clock and in your own vehicle and still be covered if you fall under the traveling employee section.  You may be off the clock and injured in the parking lot on the way to the car and still be covered.  You may hurt your shoulder while doing therapy for a work related neck injury and still be covered for a new injury.  There are many more examples that would challenge the definition of “scope of employment” but don’t be too quick to assume one way or another whether injury is or is not in the scope of employment.  If you have had an injury, contact an attorney and get some free advice as to how the law applies to you.

Rogen K. Chhabra

For questions about this or any other area of the law, visit our website at www.cglawms.com or call our office at 601-948-8005 for a free confidential consultation.

The Truth About Workers Comp

People are often worried about getting fired if they hire a lawyer (or even if they don’t) after having a work injury – so what’s true and what’s myth?

First, Mississippi is an at-will employment state.  What that means is that an employer can terminate an employee for almost any reason, unless it deals with age, sex, race, etc.  Unfortunately a person can legally be fired just for the fact that they got injured at work. 

But when our firm’s employees get hurt on the job, we want them to get good treatment. That’s what good employers should do.  That’s why we pay for workers’ comp insurance.  Employers don’t pay those premiums just to be paying them.  If something happens, they should want you to get the benefits that they already paid for so that you can get better and come back to work.  Otherwise, they have to go out and hire and train somebody new.  If your employer does not feel this way, the question would be “who wants to work for someone who doesn’t want to take care of their employees?” 

That’s the practical way to think through this issue, and even though you can’t sue the employer for firing you, there are legal consequences if they fired you after filing a workers compensation claim.  It creates a presumption in your comp case of permanent and total disability if your boss fires you after you get hurt at work.  The insurance company, and maybe even your boss, knows that.  So, even though (technically) there’s no recourse for firing you in retaliation for filing a WC claim, the presumption of disability does give them some incentive to keep you around.

The truth is, we don’t see many people get fired after making a comp claim.  The ones that do get fired are the ones who failed to get an attorney ahead of time.  A decent attorney will and should do all they can to protect you in this regard.  Usually, if our clients are told that they can’t come back to work, it’s because their employer can’t accommodate their restrictions.  Not because they filed a claim. 

If you got hurt and work and are worried about this issue, call our office for a free confidential consultation on what your rights are and don’t be one of those clients who waits until after they are fired to protect themselves.

Seth Thompson

For questions about this or any other area of the law, visit our website at www.cglawms.com or call our office at 601-948-8005 for a free confidential consultation.

What is an Independent Contractor under the Workers Compensation Act and how does it impact a claim?

Miss. Code Ann. § 71-3-3 (r) states that  "Independent contractor" means any individual, firm or corporation who contracts to do a piece of work according to his own methods without being subject to the control of his employer except as to the results of the work, and who has the right to employ and direct the outcome of the workers independent of the employer and free from any superior authority in the employer to say how the specified work shall be done or what the laborers shall do as the work progresses, one who undertakes to produce a given result without being in any way controlled as to the methods by which he attains the result.

What does this really mean and why does it matter?  If you are an independent contractor, in some cases you are not entitled to workers compensation from the person who hired you.  For example, if a private individual hires you to come paint their house, and you bring all the tools and set your own schedule, odds are you are an independent contractor and not entitled to workers compensation from that resident.  On the other hand, if you are a painter for a large construction company that tells you when to be there and provides you with the tools to do the job, odds are that you will be covered by that constructions company’s comp coverage even though they called you “independent.”

There are many examples that could go either way.  If you or a loved one have been hurt and labeled as “independent” and not entitled to coverage, you should contact our office for a free consultation.  The morale to the story is that it DOES NOT matter whether you are called independent or not.  What does matter is who was controlling the work that was done.

Rogen K. Chhabra

What are “Wages” for purposes of a Workers’ Compensation Claim and why does it matter?

Miss. Code Ann. § 71-3-3 (k) states that  "Wages" includes the money rate at which the service rendered is recompensed under the contract of hiring in force at the time of injury, and also the reasonable value of board, rent, housing, lodging or similar advantage received from the employer and gratuities received in the course of employment from others than the employer. The term "wages" shall not include practical training received by students of an educational institution as a part of such educational institution's curriculum.

So why does this matter?  Every compensation benefit whether it be temporary or permanent or total or partial all relies on starting with the “Average Weekly Wage.”  Often times this starting number is calculated by an insurance adjuster with no verification by someone educated on behalf of the injured worker.  Mistakes can be made.  For instance, they may forget to include bonuses, mileage, lodging value, or other items that should be included in that starting number.  And of course, the lower the starting number, the less the insurance company has to pay.  So it is important that an injured worker has an attorney to this calculation to make sure they started with the right number and are getting the right amount.

Rogen K. Chhabra

What is a “Disability” under the Workers Compensation Act?

Miss. Code Ann. § 71-3-3 (i) states that “Disability” means incapacity because of injury to earn the wages which the employee was receiving at the time of injury in the same or other employment, which incapacity and the extent thereof must be supported by medical findings.

There are two types of disability: temporary and permanent.  There are also different levels for each: Partial or Total.

Temporary disability in plain English means that you are unable to do your job while you are treating.  You may be completely unable to work at all or you may be able to work with an accommodation of your restrictions.  If you are suffering temporary wage loss (total or partial) as a result of a work injury, you are entitled to 2/3rds of the difference up to the state maximum for the year of your injury.  Most people call these benefits “workers comp checks.”  Be careful though.  Sometimes, the correct amount of the benefit is subject to interpretation.  It is advised to contact a lawyer if you are getting these benefits to make sure they are for the correct amount.  Most lawyers will tell you for free.

Permanent disability means that you are unable to do your job permanently even after treatment is completed.  The Workers Compensation Act uses a formula that accounts for what you used to make and compares it to your wage earning capacity after the release by the doctor.  Some people go back to work with no restrictions.  This would result in an award for little to no wage loss.  In other words that end settlement of the case would not have much value.  On the other hand, some people cannot return to any previous employment.  If this is supported by a credible doctor’s opinion, and if it is supported by a job search or credible attempt to find employment within the restrictions then the case has high value.  If you can go back to work in a limited capacity but are not capable of making your pre injury wages, then the permanent disability aspect of the case will have value accordingly, but it will be only a permanent partial disability.  This is the category that most significant injuries will fall into.

If you or a loved one has been injured at work, don’t wait until it’s too late to find out how these terms apply to the case.  Call our office at 601-948-8005 begin_of_the_skype_highlighting 601-948-8005 FREE  end_of_the_skype_highlighting for a free and confidential consultation to find out what your rights are.

Rogen K Chhabra

Fresenius Dialysis & GranuFlo/NaturaLyte

An estimated 400,000 Americans receive dialysis for kidney problems and a leading supplier of medical equipment and drugs used by kidney patients is being investigated by the Food and Drug Administration (FDA). Fresenius Medical Care provides treatments in its own dialysis centers to approximately one third of all dialysis patients in this country, and one of its products, GranuFlo, has been linked to drastically increased rates of cardiac arrest in patients who took it.

Fresenius is being investigated for having failed to explain GranuFlo heart risks to dialysis patients. Cardiac arrest is when the hearts stops pumping, which means dialysis patients could be in danger of suffering a GranuFlo fatal injury. Though, in 2011, the company sent an internal memo to its employees in its own dialysis centers regarding the dangerous drug, GranuFlo cardiac arrest risk warnings were not passed on to patients in the FMS dialysis centers. Dialysis centers owned by other companies but who administer GranuFlo to its patients were not warned by FMS either.

 

Call a GranuFlo Dangerous Drug Lawyer Who Will Fight For Your Rights

 

Don’t let a defective dialysis medical product manufacturer ruin your life. If you or a loved one suffered GranuFlo cardiac arrest or GranuFlo heart problems of any kind, call Chhabra & Gibbs P.A. for a free consultation, at 877-317-8005 begin_of_the_skype_highlighting 877-317-8005 FREE  end_of_the_skype_highlighting or 601-948-8005 begin_of_the_skype_highlighting 601-948-8005 FREE  end_of_the_skype_highlighting.

 

Dialysis is a process that replaces the kidneys’ important function of removing toxic waste from the blood system. This process requires bicarbonate, which has alkaline, to neutralize the acid that builds up in the blood. GranuFlo contains an ingredient that the body converts to bicarbonate as part of this detoxification process, but it contains more of it than competitors’ versions. Not all doctors consider the higher amount in GranuFlo when prescribing extra bicarbonate to patients, which can cause dangerous heart problems including a GranuFlo fatality.

 

Contact the Law Offices of Chhabra & Gibbs Today

 

The FDA may issue a formal warning to Fresenius if it decides that FMC should have alerted kidney dialysis GranuFlo patients and other dialysis centers of the potentially dangerous GranuFlo bicarbonate levels. If you experienced a GranuFlo cardiac arrest or lost a loved one due to GranuFlo death, call Chhabra & Gibbs now at 877-317-8005/601-948-8005.

Discrimination in Employment

An employer may not discriminate against an individual on the basis of his or her race, color, sex (including pregnancy), age, religion, national origin or disability.  In addition, an employer may not discriminate against an individual in retaliation for participating in a protected activity (such as filing a charge of discrimination against your employer, complaining about discrimination  or participating in an employment discrimination investigation or lawsuit for yourself or another individual). 

 

The Equal Employment Opportunity Commission (EEOC) is responsible for enforcing the laws related to discrimination in the above areas.  Generally, these laws apply to employers with 15 or more employees.

 

The first step you must take if you feel that you have been discriminated against for one of the above reasons is to contact the EEOC and file a Charge of Discrimination.  This charge of discrimination must be filed within 180 days from when the discrimination took place.  It is very important that the charge of discrimination is timely filed.

 

Once you have filed a charge of discrimination against your employer, the investigators with the EEOC will conduct an investigation.  Your employer will be advised that you have filed a charge of discrimination and they will be given an opportunity to respond to the charges.  Some cases are able to be resolved through medication in the EEOC process.  If the case is not resolved, the EEOC will then either issue a Determination (finding that the employer did discriminate against you) or will give you a Right to Sue if they did not find evidence of a violation.  Even if the EEOC does not find evidence of a violation, this does not mean you are not able to file suit.  Once the EEOC issues the Right to Sue letter, you will have 90 days to file suit in court against your employer.

 

If you believe you have been discriminated against by your employer, please call Chhabra & Gibbs, P.A. at 601-948-8005 or 1-877-317-8005 for a free consultation.

 

Teresa Harvey, Esq.

 

For questions about this or any other are of law, visit our website at www.cglawms.com or call our office at 601-948-8005 for a free consultation.

 

The Longshore and Harbor Workers’ Compensation Act

For many Mississippians, working on the water provides a steady source of income with which they can care for their families.  Unfortunately, because accidents can and will happen, there will be times when one of our Mississippi maritime workers is injured or killed on the job.

If you or a loved one has been injured while working on the water, here’s what you should know:
-The Longshore and Harbor Workers’ Compensation Act is a federal law that provides a means for which our Mississippi workers can be compensated for injuries received while working on the water.
-The term “working on the water” includes jobs performed on any of the navigable waterways in and around the continental United States, as well as piers, docks, terminals, wharves, and loading areas adjoining the water.
-A claim must be filed with the Office of Workers’ Compensation Programs within one year of injury of death.

Here are a few answers to questions injured workers may have:

What should I do if I am injured while working on the water?
First, notify your employer of the injury immediately and seek medical attention as soon as possible. You are entitled to seek medical help from a physician of YOUR choosing.  Next, file a written report of injury with both your employer and the District Director of the Longshore district office within thirty days of injury.  If you fail to file a written report within that time period, you could potentially forgo your rights to compensation.

If I’m hurt on the water and file a claim with the Longshore and Harbor Workers’ Compensation Act, can my employer fire me?
No. Federal law prevents an employer from retaliating against an employee who files a claim with the Longshore and Harbor Workers’ Compensation Act.

How much money will I get for my injury?
That depends on several factors.  The Longshore and Harbor Workers’ Compensation Act has provided a fee schedule to help quantify a dollar amount based on which body part is injured; however, there are several variables an Administrative Law Judge can take into consideration when determining how large an award will be.

Should I hire an attorney if I am hurt while working on the water?
Absolutely. While the Longshore and Harbor Workers’ Compensation Act exists in order to help injured employees, the process of filing a claim can be tricky, and one misstep along the way could cause your claim to be dismissed.  Also, you’ll need someone in your corner who knows how to maximize the amount of compensation you are entitled to.  Remember, you are dealing with an insurance company who is in the business of making and saving money.

Seth Thompson