Iowa Edict - Personal Injury Law Public Policy

Risking Fatigued Operators on Common Carriers

Steve Lombardi — Fri, 11 May 2012 04:00:29 -0600

Southwest Iowa's deadly train crash cause was recently explained as one involving human fatigue. That was the finding by the NTSB. See the NTSB report from the Northern Santa Fe coal train that crashed into a stopped train near Red Oak on April 17, 2011. The coal train engineer was killed. Read the "Probable Cause" finding and if that doesn't scare you nothing will.

The NTSB says Tuesday that both crewmembers had fallen asleep. They failed to comply with a signal requiring them to operate at a restricted speed and stop short of the standing train.

Railroad Accident Reports from the NTSB

See NTSB news story from AP and The Republic story of April 24, 2012

Board Meeting - Railroad Accident Report - Collision of BNSF Coal Train With the Rear End of Standing BNSF Maintenance-of-Way Equipment Train where you can also listen to the live streaming webcast.

]]>Conclusions

The following were not factors in the accident: the condition of the track, railcars, or signal system; the weather; the visibility of signals; the use of cellular telephones by crewmembers; the vision and hearing of the crew; illegal drug or alcohol use, the actions of the train dispatcher and the crew of the maintenance of way equipment train; or the mechanical condition of the locomotives of the striking coal train.
The striking coal train conductor's and the engineer's irregular work schedules contributed to their being fatigued on the morning of the collision.
Based on their medical histories, both crewmembers on the striking coal train were at high risk for sleep disorders and fatigue.
Based on the conductor's and the engineer's irregular work schedules, their medical histories, and their lack of action before the collision, both crewmembers on the striking coal train had fallen asleep due to fatigue.
Had the two crewmembers on the striking coal train completed the BNSF's fatigue training program, they would have had the opportunity to learn that they were at risk for sleep disorders, particularly obstructive sleep apnea, and the computer-based training program would have displayed a message advising them to consult with a physician.
Had the requirements described in Safety Recommendations R-02-24, -25, and -26 been in place, this crew would likely have been identified as at high risk for sleep disorders, which may have led to appropriate medical intervention.
Because biomathematical models of fatigue are relatively new to the railroad industry, the use of this technology should be evaluated for its effectiveness within the context of railroads' fatigue management plans through independent scientific peer review.
Had the crew of the striking coal train been alert and operated their train in accordance with restricted speed requirements, the collision would have been prevented.
Locomotive alerters only detect engineer inactivity and should not be used as a substitute for an effective fatigue mitigation strategy.
Had the positive train control/Electronic Train Management System currently in development been installed on the Creston Subdivision, it most likely would not have prevented this accident because it does not identify the rear end of a standing train as a target and because it allows following movements at up to 23 mph.
The positive train control designs that are being deployed and the Federal Railroad Administration's final rule on the application of positive train control are unlikely to prevent future restricted speed rear-end collisions similar to the 58 rear-end collisions reported to the Federal Railroad Administration over the last 10 years or the collision at Red Oak because train speeds at the upper limit of restricted speed are allowed.
Because the isolated locomotive cab module detached from the deck of the locomotive and was subsequently rotated and crushed, the crew could not have survived.
Although the current locomotive crashworthiness standards include a procedure to validate alternative locomotive crashworthiness designs that are not consistent with any Federal Railroad Administration-approved locomotive crashworthiness design standard, this requirement was not effective in identifying the modular operating cab as an alternate design.
The emergency response to the accident was timely and appropriate.
Had an inward-facing video and audio recorder been installed in the cab of the locomotive of the striking train, additional valuable information about the train crew's actions before the collision would have been available.
Because the Federal Railroad Administration developed standards and regulations for certified U.S. Department of Transportation crashworthy event recorder memory modules in response to the National Transportation Safety Board's prior recommendations, and a crashworthy event recorder was installed on the accident locomotive, information about this accident was available that otherwise would have been destroyed.
Because data from voluntarily installed locomotive video cameras are typically not stored in crashworthy memory modules, important operational and safety data are at risk of being lost following an accident.

Probable Cause

The National Transportation Safety Board determines that the probable cause of the accident was the failure of the crew of the striking train to comply with the signal indication requiring them to operate in accordance with restricted speed requirements and stop short of the standing train because they had fallen asleep due to fatigue resulting from their irregular work schedules and their medical conditions. Contributing to the accident was the absence of a positive train control system that identifies the rear of a train and stops a following train if a safe braking profile is exceeded. Contributing to the severity of collision damage to the locomotive cab of the striking coal train was the absence of crashworthiness standards for modular locomotive crew cabs.

Three Ousted Iowa Justices to Receive Kennedy Profile in Courage Award

Steve Lombardi — Mon, 07 May 2012 04:00:31 -0600

Crafted after a ship’s lantern the sterling silver Tiffany crafted award symbolizes a beacon of hope. Like the mariner’s cross this is a symbol from the seafaring minded intended as a shining example of courage shown in rough seas. Ternus, Baker and Streit are being honored for their decision to enforce Iowa’s Constitution knowing the decision, while right, would not be a popular one. The award will be presented at the JFK Library and Museum in Boston. This is an award that those who lead the charge that unfairly ousted these three justices should not hold their breath to ever be awarded. For those who used the decision in Varnum vs Brien on [April 3, 2009] to oust the Justices can best be described as cowardly, not courageous. The Profile in Courage Award has been awarded since 1990. For a list of the recipients follow this link and read the remainder of this article.

JFK awards for ousted Iowa Justices, US diplomat
Varnum vs Brien, 763 NW2d 862 (Iowa 2009)
Discussion of Varnum vs Briend and the issue of same-sex marriage on The Iowa Edict

]]>Recipients

1990: Carl Elliott, Sr., United States Congressman from Jasper, Alabama
1991: Charles Weltner, United States Congressman from Atlanta, Georgia
1992: Lowell Weicker, Jr., U.S. Representative, U.S. Senator, and the 85th Governor of Connecticut
1993: James Florio
1994: Henry Gonzalez
1995: Michael Synar
1996: Corkin Cherubini, Ed.D., Calhoun County, Georgia School Superintendent
1997: Judge Charles Price, Montgomery, Alabama
1998: Nickolas C. Murnion, Garfield County Attorney in Montana; also, the signatories of the Good Friday Peace Agreement
1999: Russell Feingold and John McCain
2000: Hilda Solis
2001: John Lewis; Gerald Ford
2002: Kofi Annan; Dean Koldenhoven; the representatives of the NYPD, the FDNY, and the military who risked their lives on September 11, 2001
2003: Dan Ponder, Jr.; David Beasley; Roy Barnes
2004: Sima Samar; Cindy Watson; Paul Muegge
2005: Joseph Darby; Shirley Franklin; Bill Ratliff; Victor Yushchenko
2006: Alberto J. Mora; John Murtha
2007: Bill White; Doris Voitier
2008: Jennifer Brunner and Debra Bowen; William Winter (Lifetime Achievement Award)
2009: Edward M. Kennedy
2009: Brooksley Born
2009: Sheila Bair
2009: Leymah Gbowee and the Women of Liberia Mass Action for Peace. Their efforts are portrayed in a documentary film Pray the Devil Back to Hell
2010: Karen Bass, Dave Cogdill, Darrell Steinberg, and Michael Villines
2011: Elizabeth Redenbaugh , Wael Ghonim, and the People of Egypt
2012: Former Iowa chief justice Marsha Ternus and former justices David Baker and Michael Streit

Son as a "non permissive" driver may be heading to criminal court

Steve Lombardi — Thu, 03 May 2012 04:00:51 -0600

I get a lot of questions and this week was no exception. Here a mother wrote to me because her son was involved in an intersection collision with another high schooler. The other kid ran a stop sign and t-boned her car. Progressive insured the other driver and apparently is claiming the son was a non permmissive driver and they will not provide insurance coverage. Really? You know where Progessive likely heard that story from.

If that young driver's parents are claiming he didn't have permission to drive, they are likely saying this to avoid paying, thinking this will do an end run on the insurance claim. Well, they are likely making a big mistake. Here's why.

If he was driving without permission then didn't he steal the car? As a lawyer my first question will be whether they turned junior in to the police as the driver of a stolen vehicle. If he didn't have permission to be driving then he stole the vehicle and should be charged criminally.

So as a coddling and entitlement mentality parent consider the consequences before doing the wrong thing. The next time a parent wants to teach a kid how to avoid responsibility think it through and exactly what you're teaching your son.

You can't have it both ways, you can't avoid financial responsibility for negligence by claiming the driver wasn't given permission to use the car and avoid criminal sanctions for theft. That Participation Trophy won't be handed out in real life; only on the soccer field.

So you say "Check." and I say, "Check-Mate!"

The Disability Debate - What came first, the chicken or the egg?

Steve Lombardi — Tue, 24 Apr 2012 04:16:58 -0600

Yesterday Investor’s Business Daily had this headline, “5.4 Mi Americans Join Disability Roll Under Pres. Obama.” It could have easily read, “5.4 Mil Fewer Americans Joined Disability Rolls Then Under A Pres. Romney”. Literally the first headline is true and it’s totally meaningless. It’s totally useless information and in the context to which it’s being used it’s deceitful. The current Administration didn’t cause the economic problems, the Bush Administration did.

I’m offended when the editors assume I don’t have enough intelligence to appreciate the slant on the article is intended to create further mindless prejudice against the Obama Administration while doing nothing to resolve the unemployment problem. Let me say, I’m a registered Republican. In Iowa you are either a Republican or a Democrat because you can’t be a registered Independent. I vote my conscience and have never fallen into the mold of being a non-thinking party member. Democrats spend way too much money, sort of like the Bush Administration did. You see there isn’t any difference between the two Parties. They are evil twins. The one says they won't overspend, then they do. And the other says we never do and does.

]]>This sitting President didn’t create the economic calamity. He inherited it and we the people put him in office because of what 8 years with a Bush Administration did to us while it allowed Romney’s cohorts at Bain Capital to run roughshod over the American economy while they pillaged and plundered.

Bottom Line: Unlike the Scarecrow, most of us aren’t without a brain.

Farm kids as workers under the microscope

Steve Lombardi — Thu, 05 Apr 2012 04:07:41 -0600

The focus is on hired kids doing certain farm work that has a higher risk of injury. The operative word being "hired", not just any farm child worker. Farmers have long been exempt from certain labor laws enacted to protect workers. So what’s the rub? The Drover Cattle Network lays it out pretty well in the article Child Labor Coalition: U.S. should implement proposed farm safety, Child Labor Coalition, March 27, 2012.

The 15 proposed rules—known as “hazardous occupation orders”—would, for the first time in decades, update the list of farm tasks considered too dangerous for children under age 16 working for hire. New restrictions would include operating certain heavy machinery, working in silos and grain storage facilities, and handling pesticides.

Bill S. 2221, introduced on March 21 by Senators John Thune (R-SD) and Jerry Moran (R-Kan.), would stop the Labor Department from issuing the occupational child safety rules. A version was introduced March 7 in the House (H.R. 4157) by Rep. Tom Latham (R-Iowa), with the misleading title, “Preserving America’s Family Farms Act.”

]]>I’m not sure what I think about all of this. On the one hand it’s a good thing to protect child workers, but on the other hand we assume all farmers hiring kids have no common sense when it comes to what these kids can and can’t do and how they should be doing the work. At what point are we regulating ourselves to death? At what point do regulations take away our competitive edge in a very competitive world economy?

I’ve been trying to reclaim some land that has outdated buildings and improvements on it. The land used to be a recreational business having pitch-n-put, batting cages and go-karts. The improvements are outdated so I'm trying to reclaim and redevelop the land. As a lawyer who has always figuratively tore stuff down I’m attempting to apply my knowledge and actually rebuild something. This former business is located in a floodway zone. In working on the project I can’t believe the regulations, restrictions, layers of bureaucracy that I have to deal with in trying to reclaim the land and turn it into something useful. Here is one example, we have a parking lot with just under 50 parking spaces. The monthly run-off taxes are over $200 per month for a non-functioning business. That tax is supposed to pay for sewers and the justification for the tax has to do with runoff water. I asked them why this tax and they say it’s because with concrete my water runs off onto someone else’s property, instead of absorbing into the land. But let’s face it this makes zero sense because I’m in a floodway zone and every other owner’s runoff water runs onto my property, not mine on theirs. So really, why am I paying any runoff water tax?

In the case of farming I couldn’t plant a straight row of crop if my life depended on it. I have little knowledge of what goes into operating a farm; so you could say when it comes to farming I have little common sense. At 57 what concerns me about over-regulation is how it affects the entrepreneurial spirit in America. At some point we are discouraging people from starting a business or staying in one because the regulations are so voluminous that no one can possibly know what they must do to comply with the law. Simply put it’s easy to write regulations when you don’t have to live by them. And that ladies and gentlemen shows a lack of common sense. Perhaps we need to unwrite some of what we have. Is it anyone's job to unwrite outdated regulations? Maybe someone should have that job.

Read the regs and decide for yourself if they make sense. And then ask yourself whether the added burden on new businesses is worth the benefit hopefully achieved.

Iowa Courts Will Consider Mid-Tiered Civil Courts

Steve Lombardi — Tue, 03 Apr 2012 04:00:00 -0600

For cases having an expected value of $5,001 but less than $50,000 economic feasibility may be on its way. The Iowa Civil Justice Reform Task Force will recommend to the Iowa Supreme Court that it adopt a judicial mid-tier for cases of this value. The intended changes include limiting discovery to speed up the process which will attempt to resolve these civil cases within 12 months of filing. Iowa handles over 150,000 civil cases per year.

The final report can be viewed online or on the Lombardi Law Firm website resource section. See Reforming The Iowa Civil Justice System, Report of the Iowa Civil Justice Reform Task Force.

All I can say is, it’s about time. In the last 30 years I must have told 1,000 people their civil cases were not economically feasible due mostly to litigation costs and time delays associated with case processing. More on this at a later date, the report is 109 pages in length.

City Of Des Moines Loses $35 Million Class Action

Steve Lombardi — Wed, 07 Mar 2012 04:00:48 -0600

What started out as a 5% franchise fee on utility bills in the City of Des Moines has now blossomed into a $40 million class action verdict. It took one fed up citizen and 8 years of litigation to pound out the victory for the little guys in Des Moines. So now Des Moines will pay back the $40 million to its past citizens and increase the taxes for current citizens by $40 million. Whoever is left please turn out the lights on your way to the suburbs. Supreme Court Tells Des Moines To Refund $40M, KCCI, Channel 8

]]>I recently purchased what was formerly a pitch-n-put, go-kart and pitching cage business in the City of Des Moines; with the idea to rehabilitate the land and get it back to productive use. It’s been an interesting experience to say the least. There is a small parking lot with about 45 car spaces. I get charged $220 per month for water run off fees. I inquired with the City of Des Moines about what that means and was told as a land owner with an impervious surface the water that falls onto my property runs off on the adjoining properties and so I’m taxed for that privilege. Problem is this land is zoned FW, meaning it’s in the floodway. Land that’s in the floodway supports every other landowner’s water runoff, that runoff water just sits there damaging our pavement or else it drains into the Walnut Creek River. This makes no sense to me. No wonder jobs are going to China; fact is it’s probably easier to do good under a communist style government than right here in central Iowa.

I attended the pre-development meeting and was told how many trees and shrubs I would have to plant. I thought, are you kidding me, planting shrubs in a floodway, won’t those flood waters just kill them? So you want me to spend money that will be wasted?

And speaking of wasting money, when do I get a floodway bailout program?

Court Documents: Read The Court Opinion (pdf)

Texting and situational blindness

Steve Lombardi — Wed, 22 Feb 2012 04:00:47 -0600

The Iowa State Patrol’s investigation is complete and the conclusion is another teen has died due to situational blindness brought on by distracted driving. The report concludes this 17-year old was texting while driving taking her attention away from the road and allowing her car to run into the back end of a school bus three miles east of St. Ansgar. This young lady was a junior at St. Ansgar High School. The accident occurred at 3:24 pm on November 1^st, 2011 on Iowa’s Highway 218.

Allison Smith – 17-year-old Iowa teen described above.

The Iowa DOT also publishes a teen driving guide that provides parents with rules for safe teen driving. See Teen Driving Responsibilities.

Rule 1: Put it down!
Rule 2: Absolutely no alcohol!
Rule 3: Always buckle up!
Rule 4: have the car in the driveway by the designated time!
Rule 5: no more than one passenger in the car at all times (or zero passengers if the state’s GDL law doesn’t permit any).
Rule 6: Follow your state’s GDL laws!
Rule 7: Follow the house rules or face the consequences!

]]>Emily M. Huntington - There is another case in Indiana that has that state focusing attention on teen drivers texting. This young gal was from Osgood, Indiana. Her crash was a single car event in which the passenger who was wearing a seat belt walked away from the accident. She was 18-year-old Emily M. Huntington from Osgood, Indiana. Osgood teen dies in texting wreck, Dearborn County, The Register, Staff Reporter

Alexis Summers - We don’t have to far to find another teen, this one a 17 year old cheerleader from Knock High School in Saxonburg, Pennsylvania who died at 10:00 pm on Hannastown Road in Jefferson Township, Butler County.

"The evidence at the scene was a cellphone inside the vehicle with a partial text message prepared. It was obvious that the phone was active at the time of the crash," Lt. Eric Hermick said.

Additional Resources

Psychology Today, Death by Text, The Dangers of Teens Texting and Driving, Raychelle Cassada Lohmann, MS, LPT in Teen Angst

“As she raced down the highway, her phone started to ring - she had a text. She rambled around in her purse and found her cell. It was Calli "Where R U?" Ugh, Elizabeth sighed she responded "L8, B Rt There". She started to put her phone down and heard a horn and screeching tires. She looked up but it was too late, she smashed into the car ahead of her. Pain shot through her entire body, everything went black and she struggled to gasp her final breath...”

Cell Phone and Texting Laws - State Laws that Ban Cell Phone Usage while Driving, Governors Highway Safety Association

Resources

Talking to death: texts, phones kill 16,000: study, Reuters
Dnt Txt N Drv, Oprah
TRL, researches texting issues and driver distractibility.
Dangers of Texting Whilst Driving,
Human Factors
The effect of text messaging on driver behavior: a simulator study,
Eliminating Driver Distractions, and
Car Simulator Case Studies.
How do we discourage not thinking and driving?
Teen Driving Guide: Rules to Live by

It's still the place we call home

Steve Lombardi — Sat, 11 Feb 2012 04:00:26 -0600

Guns no guns?

War no wars?

Traffic cameras or more money spent on law enforcement to stop crazy drivers?

Airport security full body scanners or pat downs?

Tasers or no tasers?

Talking about the issues or negative campaign ads?

Congressional largess or serving the people who put you there?

Running public corporations for the stockholders or multi-million dollar CEO bonuses?

Liberty, fairness or this thing called justice?

Screaming pundits or civil discourse?

The old Constitution or the new Constitution?

]]>Serving the public or taking time from a Congressional hearing to buy stock options?

President Obama or Gingrich?

Corn or soybeans?

Sue or not to sue?

Visa and Mastercard or Dwolla?

Tort reform or making wrongdoers take financial responsiblity?

Ford or Chevy?

Iowa or Iowa State?

Herky or Cy?

Civil rights for all or just those who want to dictate what other's think and can do?

Red Sox or the Yankees? (Red Sox of course.)

Special thank you to Shannon Schaefer from Savannah Time for pointing out this video.

http://savannahtime.net/

Does Iowa Need a Constitutional Right to Bear Arms?

Steve Lombardi — Tue, 07 Feb 2012 04:04:00 -0600

What came first the chicken or the egg? That question debates the existence of a God. And in Iowa we never shy away from a discussion about religion, and so lately we Iowans are attempting to unscramble that which cannot be resolved by asking a similar question about guns: Are we safer with or without handguns?

A new gun law championed by the National Rifle Association (NRA) that took effect January 1 in Iowa has some librarians concerned that it will allow patrons to openly carry firearms in the library.

This week we are covering stories about security, insecurity, evidence, crime, terror and the ever present video surveillance cameras. We ask several questions of our readers and these include the following.

Are handguns and those who own them our friend or our foe?
Do they make us more secure or less secure?
Are they useful or a hindrance?
Is the evidence that the security surveillance camera produces useful or useless?
What is the expectation of security and will it lead to a new civil cause of action?
Hey did we just shoot ourselves in the foot?

We start with a story from KCCI TV 8 that asks, Does Iowa need a constitutional amendment to protect the right to bear arms? Only six states in America have a constitution that doesn’t set out gun rights for its citizens. Perhaps that’s because when Iowa was young and unsettled its citizens had little time for guns except to hunt. According to the article the Polk County Sheriff’s office reports that in 2011 10,000 people applied for gun permits and only 40 were denied the right to bear arms.

There is a difference of night and day.

Science resolves this age old question with analyzing protein. So now it's as clear as muc.

Hey it's the egg stupid! Not so fast it's the chicken!

]]>Dichotomy: Machine Gun Kelly by James Taylor and Cleveland rapper Machine Gun Kelly (Just do a search on YouTube for MGK.)

Polk County Iowa Sheriff’s Office – Weapons Permits

Before buying a handgun, ask yourself how comfortable you are with answering these questions.

Where can you buy a handgun in Iowa? Search link.
Handgun Law USA pdf.
What is a trigger lock?
Why should I use a trigger lock?
Where can I buy a trigger lock?
Am I liable if someone is shot with a gun I own?
Where do I buy gun liability insurance?
Should gun owners be required to carry gun liability insurance?
How do I maintain a handgun?
How do I secure a handgun from children?
What if my handgun is stolen?
Is there a database for stolen handguns?
What if my handgun was stolen and then used in a crime?
Where do I buy cheap bullets?
How do I carry my handgun?
Where do I practice with my new handgun?
What are the most common accidents with handguns?
How do you secure a handgun?
What trouble can I get in if I get into a shootout with a handgun?

You be the judge: Security or Insecurity?

Machine Gun Shootout in Kentucky, 2007, a Three Day Event, Knob Creek Gun Shoot, 15,000 Shooters
Kentucky is a Class 3 State, back to Knob Creek Machine Gun Shoot, 2011
Piedmont, Alabama Gun Shoot, 2011
Northern Rockies, Wyoming Gun and Cannon Shoot

Iowa's Work Comp Commish Speaks His Mind

Steve Lombardi — Mon, 06 Feb 2012 04:00:06 -0600

Iowa’s Workers’ Compensation Commission is gay; there is no questioning that fact. He’s also doing a good job running the agency; there is no doubt about that fact. But for reasons that remain unexplained the Governor says otherwise. The Governor reduced Godfrey’s salary claiming his actions are slowing up Iowa’s economic recovery. But that can't be true; even the Iowa Economic Development Commission doesn’t agree with the Governor. The EDC touts the workers compensation laws in Iowa as a positive attribute of doing business in this state. Link In many instances the Governor is right, but this isn’t one of them.

How does one get back on track?

Governor Branstad needs to apologize, restore Godfrey’s pay retroactively and move on to bigger issues that will have the effect of helping the state economically.

Mp3 Audio download.

This is a distraction the State of Iowa doesn’t need.

]]>As it now stands I’m not sure how this advances the interests of Iowa’s citizens. I for one couldn’t care about who Godfrey chooses as his mate; it’s just not relevant to how the agency runs. So why does it make any difference to the Governor? You got me on that one. If Branstad did as suggested no jury would award compensation and I will go out on the limb and say Conlin and Godfrey would likely dismiss their case. This is really not about money and may say more about whether or not Branstad intends to run for re-election. To date very little damage has been done to the Iowa’s good name, but let this go on and a stage is set to make us look bad and to allow other states to move ahead with the caucus process of selecting presidential candidates. That bully pulpit is already being assembled.

That the Iowa House Labor Committee had this hearing is the foundation of a platform. If you listen to the testimony it should be obvious Godfrey knows his agency, how it is working and is improving efficiencies. In those respects he’s different than his predecessors; he’s doing a better job. I’ve watched and practiced before this agency for over 30 years and can attest that from an administrative standpoint Chris is doing an excellent job. And remember I’m a registered Republican. So why pick on him? What is being gained? Perhaps the better question is by this action what is being lost?

AUDIO of Godfrey’s appearance before the House Labor Committee.

Read, State commissioner suing governor speaks (audio), O. Kay Henderson, RadioIowa.

http://www.radioiowa.com/2012/01/18/state-commissioner-suing-governor-speaks-audio/

See also,

Down on Main Street, pedestrian safety knows no status

Steve Lombardi — Thu, 02 Feb 2012 04:00:53 -0600

On way to work, pedestrian struck and killed in Charlotte

I read that headline and wondered why anyone would ban the use of any traffic cameras. The Iowa legislature is considering such a move. To do so would be pandering to the voters, nothing more.

Look at the guy in Charlotte. Being familiar with the route didn’t save this pedestrian worker as he headed to his job at Wells Fargo along a route he’d done morning after morning. I’m sure the truck driver feels badly about his part, how could he feel anything else, but that won’t change the facts. The truck driver is reportedly charged, but one witness is quoted as saying there was fog that morning and he didn’t believe the truck driver ever saw the pedestrian. Chances are the prosecution will have no choice but to plea bargain. Who knows what the truth is except the pedestrian is dead.

A construction company worker who was near the scene said he didn't believe the dump truck driver saw the pedestrian. Tuesday morning was foggy across much of the area. The pedestrian was 47-years-old, a director with corporation’s commercial mortgage servicing team handling asset management with commercial real estate. Photo available.

]]>The reporter, Maria David writing for the Charlotte Observer did a nice job of detailing the number of accidents and where this intersection ranks for most dangerous intersections in Charlotte and on the DOT's High Accident Location List. It sort of makes you wonder if each state shouldn’t do more to publish lists of the most dangerous intersections.

Charlotte’s High Accident Location List can be accessed by following this link.

That report is nicely done, with bar graphs and stats for number of collisions, circumstances and other identifying data. There is a spread sheet with each location and the crash rates. Link to NC list. So I wonder if Iowa has such a list. Drop below this list from Charlotte.

2010 Crash Summary

Collisions by Motorist Contributing Circumstances

Contributing Circumstances Total Collisions Percent of Total Collisions

Inattention 3,480 22.12%
Failure to reduce speed 2,704 17.19%
Failed to yield right of way 2,056 13.07%
None Indicated 871 5.54%
Followed too closely 654 4.16%
Improper turn 573 3.64%
Disregarded traffic signals 548 3.48%
Improper lane change 534 3.39%
Unknown 420 2.66%
Exceeded safe speed for conditions 371 2.36%
Other 294 1.87%
Alcohol use 216 1.37%
Improper backing 190 1.21%
Operated vehicle in erratic, reckless, careless, negligent or aggressive manner 196 1.25%
Swerved or avoided due to wind, slippery surface, vehicle, object, non-motorist 178 1.13%
Overcorrected/oversteered 176 1.12%
Crossed centerline/going wrong way 174 1.11%
Driver distracted 171 1.09%
Other improper passing 131 0.83%
Disregarded stop sign 143 0.91%
Visibility obstructed 106 0.67%
Operated defective equipment 101 0.64%
Exceeded authorized speed limit 94 0.60%
Use of improper lane 32 0.20%
Disregarded other traffic signs 45 0.29%
Disregarded road markings 45 0.29%
Improper or no signal 33 0.21%
Improper parking 26 0.17%
Disregarded yield sign 25 0.16%
Right turn on red 14 0.09%
Drug use 8 0.05%
Passed on curve 5 0.03%
Passed stopped school bus 3 0.02%
TOTAL 15,799 100%

The University of Kentucky has developed procedures for identifying high-crash locations and prioritizing safety improvements. Link Iowa has a list but names it a bit different: Iowa DOT’s Safety Improvement Candidate List, June 2002, a bit dated I’d say. Iowa State University has studied the issue. See Systematic Identification of High Crash Locations (TR-442). There is a public website. Wikipedia refers to this in “Traffic collision”.

NHTA Traffic Safety Facts Annual Report

About the research

Abstract: The objective of this project was to develop tools and procedures to identify potentially hazardous roadway locations and designs, and to demonstrate the utility of these tools by developing candidate lists of high crash locations in Iowa. An initial task built an integrated database to facilitate the tools and procedures. The Iowa Department of Transportation (Iowa DOT) Geographic Information Management System (GIMS) and Geographic Information System Accident Analysis and Location System (GIS-ALAS) databases were integrated with available digital imagery.

In Iowa the statistics are broken down by county from 1994 to 2009. Looking at 2009 there were 372 car accidents with fatalities, down from 412 in 2008. The counties with the highest numbers were Benton with 10, Scott with 13, Woodbury with 11, Pottawattamie with 12, Polk 13, Linn with 15, Johnson with 11 and Jefferson with 9. Link

Q&A: What can I do if I am caught driving without a license again?

Steve Lombardi — Wed, 01 Feb 2012 04:00:52 -0600

Question: What can I do if I am caught driving without a license again? I was in an accident; I do not have a license. Took a chance to get back and work. I have been caught before and this will make it my third felony driving while suspended. The ticket written was only for not providing a license, what can I do?

Answer: Okay hotshot let’s get real here. What you say doesn't make sense: there is no charge of felony driving while suspended, so I'm guessing there is more going on than you've alluded to. Otherwise, the answer to your question will depend upon the reason you don't have a license in the first place. Are you suspended or barred? Why are you suspended or barred? What happened the prior times you were arrested? What else is in your criminal history? Are you on probation or parole? Depending upon the answers to those questions you could be looking at a very minimal fine or as much as prison, and additional license suspensions.

And one more thing, stop making excuses for criminal behavior. You said, "Took a chance to get back and work." What does that mean? I suspect the devil is in the details behind that statement. Where were you driving to? Huh? Cat got your tongue? The judges aren't stupid, you think the prosecutor is going to be played that easily? You didn't say you were heading to work so throwing that tidbit in won't get you to first base.

The fact is you just struck out.

Iowa's Governor Wants to Ban Traffic Violation Cameras

Steve Lombardi — Tue, 31 Jan 2012 04:02:34 -0600

Iowa’s Governor Branstad is not happy with what he perceives as the unfairness of traffic cameras. He says he’d sign a bill banning the use of them in Iowa. He's wrong. They are working on some roads especially on I-235 between Des Moines and West Des Moines.

See Branstad Says He Would Sign Traffic Camera Ban, KCRG, TV-9. Apparently while visiting Arizona he was mailed a $200 traffic ticket after his speed was 10 miles over the posted limit while driving across the desert in a rental car.

As a personal injury attorney I don't find the outright ban encouraging. Anyone who has driven on I-235 from West Des Moines to Des Moines before the traffic cameras were installed knows what that was like. It's a race track with no traffic cop. Interstate 235 needs cameras. There are some locations where traffic cameras have helped to slow down the traffic and reduced the number of accidents and near accidents. Totally banning cameras would only encourage the morons who drive like they are on the Newton Speedway. Why should the Governor give them the green light?

]]>Resources:

Committee approves traffic camera changes, Quad-City Times

Get Rid of Iowa Traffic Cameras, Facebook

Iowa Traffic Webcams, Leonards Worlds

Central Iowa Traffic Cam Targets Wrong License Plate, KCCI

Find Traffic Cameras by Map by TrafficLand

Get Traffic View on your iPhones, iTunes

Iowa Lawmakers consider ban on traffic cameras, Instapundit.com

Update:

Camera ban moves ahead as argument heats up – Classic debate between liberty and security, January 26, 2012, Des Moines Register, Jason Noble

Des Moines police say red light cameras are reducing crashes, January 24, 2012 – Anyone who’s driven on I-235 after the cameras were installed knows this is true. The speeds have dropped and it’s less like the Iowa Speedway and more like it should be, a commuter route into the City from West Des Moines.

Federal budget deficits are hurting my clients and my kids

Steve Lombardi — Mon, 30 Jan 2012 04:00:32 -0600

The Des Moines Register picked up Froma Harrop’s piece titled “Middle class has aided its own decline” published no January 2, 2012. She writes for the Providence Journal. (aka projo) She makes a point about living middle class lifestyle and how those living in suburbia have abandoned what madbecause the middle class lived a lifestyle it couldn't afford it's now finding out there is no free lunch. To do otherwise is to abandon the ideas that got you there and the house of cards sooner or later had to come crashing down. I found Harrop’s January 3, 2012 article on point. Suburbia is where I grew up, learned to work and how to live within certain means.

I grew up in Rhode Island (Bristol) and in Massachusetts (Westboro and Boston for a short stint) during the 60's and 70's. My father died when I was a teenager and my mother taught us to live a rather frugal lifestyle. I left New England and moved to Iowa in 1975 to attend college then decided to stick around. I showed up with $110.00 in my checking account and $25 in my pocket. Then I liked what I saw about Iowa; the frugal lifestyle most Iowan’s lived. Farmers were smart with what little they had or else they were out of business. But a lot has changed and not all for the good. What now appears to be the base of our economy is a free lunch and is nothing more than government gone amuck printing money as if it will never catch up with us. But the law of mean revision has a way of bringing everyone back to reality. Running budget deficits can’t go on forever. And even though we don't say it aloud, we all know this free lunch will come with a huge price. The idea of the free lunch has been around for a long time. I saw it as my children were growing up and the high school students drove better cars than did the teachers.

]]>My children understand what I’m saying today. For 10+ years I coached youth soccer and fought a losing battle over my refusal to hand out something for nothing, participation trophies. I referred to it as The Participation Trophy Syndrome, where parents encourage the development of a defective character by rewarding children who give a mediocre to lesser commitment to the team then demand their child be rewarded. When we encourage mediocrity in children during their formative years we are developing a defective character. Pop psychology would say to make children feel good about who they are no matter what the committment; but kids realize they aren’t winning a trophy.

Only losers will accept a participation trophy; a winner wants to win one.

If you convince a child he's a winner just for showing up he/she develops a seriously flawed character - a defect if you will - because they begin to believe just their showing up is enough to be given a pay check. You aren’t special just because you show up; you actually have to commit yourself to doing something. In sports it's practice, work on your skill set and suffer the pain of working harder than the next guy. It’s no different than a 5-5 football team going to a bowl game. You aren’t fooling anyone.

Do you think the Chinese kids are being given participation trophies?

To the kid convinced that’s he’s a winner even though his team lost more games this season than they won, sacrifice is a foreign concept. The child that is convinced he's a winner even though he lost, is running a trade deficit. That’s a fact because they don't understand failure. Failure is your own bootstraps. The bully thinks he’s a winner just because he’s the biggest kid on the playground. And beign a bully works right up until the day it doesn't. If you don't experience the pain of being a failure then how can you ever develop the skill set that allows you to become a winner?

The Iowa Edict – The Participation Trophy Syndrome

The Participation Trophy Syndrome is not a children's issue it's a parental defect pushed on kids by parents who feel guilty and want their child to be spared the pain of experiening trivial failure. There is nothing wrong with failure; it's a necessary experience in life to properly develop a good and healthy character based on a solid foundation. Let them fail to this small degree and some will develop the skill set needed to become winners. And some won't, but that's life. Not everyone can be at the top.

In my ten plus years of coaching soccer no child ever asked me for a participation trophy, only their parents.

So it's no wonder that the same people who destroy their own financial lives with irresponsible spending push the same defective values on their children. It’s one thing to take a chance and to fail financially, that’s okay, but to spend everything you make and to live on credit beyond your means is the worst kind of participation trophy. Our government is doing the same thing to us. The Congress keeps handing us through big business one participation trophy after the next. Froma Harrop’s article is nicely written, read it and then reread it to your children; it’s a lesson worth instilling in them. Maybe we and our kids can't be saved, but this next generation can.

Do I have any legal recourse after an auto accident if I was not seriously injured?

Steve Lombardi — Tue, 17 Jan 2012 04:00:53 -0600

Question: Do I have any legal recourse in an auto accident if I was not injured? I am a truck driver involved in an accident in a company truck. The other driver admitted to being at fault along with two witnesses that stated it was his fault. He had minor injuries and was taken to the hospital. I had a stiff neck for a few days, but did not seek medical attention. I was laid off a week later. I had a clean driving record until this happened. Now I'm having a hard time getting driving jobs because of this accident. Do I have any legal recourse against the other driver from this accident?

]]>Answer: Well no. In every personal injury action, which the law calls a "tort" you need four things before you are allowed to sue and to proceed.

1. A duty.

2. A breach of the duty.

3. Damages.

4. Your damages need to be proximately caused by the negligence of the "tortfeasor" the wrongdoer.

In your case you are simply missing 3 and 4. You have no damages and therefore no damages were proximately caused by the wrongdoer. Your personal injury is what the law refers to as de minimis. Lay people would use this definition and lawyers this one. Frankly it was what the McDonald's marketing machine was all about but they were completely wrong and fooled most people into believing the sky was falling.

De minimis is a Latin expression meaning about minimal things, normally in the locutions de minimis non curat praetor ("The praetor does not concern himself with trifles") or de minimis non curat lex ("The law does not concern itself with trifles").[1][2]

In risk assessment it refers to a level of risk that is too small to be concerned with. Some refer to this as a "virtually safe" level.[3]

An abbreviated form of the Latin Maxim de minimis non curat lex, "the law cares not for small things." A legal doctrine by which a court refuses to consider trifling matters.

In a lawsuit, a court applies the de minimis doctrine to avoid the resolution of trivial matters that are not worthy of judicial scrutiny. Its application sometimes results in the dismissal of an action, particularly when the only redress sought is for a nominal sum, such as one dollar. Appellate courts also use the de minimis doctrine when appropriate.

But the personal injury aside you did also mention a wage loss being caused by your having a tough time keeping a job. It didn’t take me 30 years of practice to know it’s going to be extremely difficult to prove you’re not being able to find any truck driving job is somehow proximately caused by this one little accident. There must be more than you’re telling me; either that or you aren’t trying hard enough to find work.

Make sense? Now get back to work.

Iowa Industrial Commissioner Sues Iowa's Governor Alleging Sexual Preference Discrimination

Steve Lombardi — Mon, 16 Jan 2012 04:03:43 -0600

Surely the hate mail over this lawsuit will drive the U.S. Postal Service into the black. This past week the gloves came off when the Iowa Industrial Commissioner (Chris Godfrey) personally sued Governor Terry Branstad (and others in his administration) for discrimination, defamation and harassment over the Governor’s reduction in Godfrey’s annual salary by nearly $36,000. It left me wondering how any of this serves the people of Iowa.

The Govna wanted Godfrey to resign claiming inter alia that Godfrey's actions were getting in the way of job creation in Iowa. Essentially the claim is that he wasn’t doing a good job; a claim which is seriously flawed to the point of being frivolous. (On this point you need only read how the Iowa Economic Development Authority sells this state to the business community.) Iowa’s workers’ compensation program is heralded as one of the best run programs in the country. Godfrey’s suit says if I am doing a good job what else is left but a right-wing attack on my sexual preferences?

"Iowa’s workers’ compensation costs are among the nation’s lowest. The average cost of workers’ compensation insurance for manufacturers in Iowa is 16 percent lower than the national average. Iowa law provides for employer choice of doctor." (Actuarial and Technical Solutions, 2009) - quote from Iowa Economic Development Authority, Iowa's Business Advantages LINK

I'm not sure in Iowa I've seen this level of dirty politics being played with the Iowa Industrial Commissioner position. As someone who is a registered Republican and who has practiced before the commission for over 30 years I have to say Chris Godfrey is doing an excellent job. His decisions find balance and frankly the Commission under his administration hasn't favored the injured workers. There is a balance struck that favors no one side. He sticks to the law. His decisions are as fair to the employers as they are to the injured workers. The facts seem to dictate the outcome and if I had to pick a side I'd say the Commission favors the employers. So come on Govna what the heck are you doing?

]]>Beyond the personal attack on Godfrey there is a more important issue at stake here. The industrial commissioner's position was not supposed to be an appointment where a newly elected Governor got to play political football with the appointment. The term of the industrial commission was purposefully set and staggered in a way that a newly elected Governor could not simply remove him/her. When workers are out of work due to being injured they depend on the weekly benefits to put food on the table. Predictability of how the law looks at their claims was considered a hell of a lot more important than a politician's ability to play politics with the agency's decision makers. The Governors were not supposed to make this position one of term politics. But that's exactly what Governor Branstad is trying to do. Will this same thing happen when the Democrats get elected. This is bad politics and bad public policy that in the past 30 years we've been able to avoid, until now. In essence what Governor Branstad is trying to do has more serious consequences than he or his administration realize or perhaps care about. But I do because my clients are those injured workers with family's at home to feed.

So who can hear their bank account going ka-ching?

According to the Des Moines Register’s Blog the State of Iowa is paying lawyers $325 per hour to defend the Governor’s actions. Wow George how does one get that kind of coin? According to the Register blog George LaMarca agreed to reduce his hourly rate to $210 per hour and to charge only $75 an hour for legal clerks. Most of Iowa’s downtown defense legal community will be thinking, “Where do I sign up for this gig?” But this isn’t the first time; according to the Register’s blog the Govna hired the Nyemaster Law Firm at $275 an hour to defend him back in September. For a guy that hates lawyers he sure seems to need them quite often. Both are excellent firms and of course Roxanne is no push-over when it comes to civil litigation that gets downright uncivil. See Rush Niget on the Microsoft litigation of which Roxanne Conlin was lead counsel.

What is a citizen to do while the political left and right waste our tax dollars?

You can sit on the sidelines and ignore the shenanigans or else you can publicly speak up. For me the future for my children and grandchildren is more important than just accepting the wasting of government resources to tell people who they can and can't sleep with or love. Frankly that's their business. For me it's more important to speak up than to allow the egos of politicians, left or right, to use the government for their own personal beliefs.

My suggestions:

The two of you knock it off.
The Govna immediately and retroactively reinstate Godfrey’s pay.
The Govna publicly apologize to Godfrey.
Godfrey dismisses his lawsuit.
The Govna knocks off the personal animosity towards Godfrey so the people of Iowa can be served in a way that advances the image of the people of this state and improves the business climate along with creating jobs; rather than chasing them out of this state.
We tell George "thanks but no thanks." and we all save a bunch of money, a lot more than dismissing Godfrey would ever save.

Just my two cents.

RESOURCES

Godfrey vs Branstad State Appeal Board Claim Form
Godfrey vs Branstad Tort Claims Against State Employees
Godfrey vs Branstad Petition at Law and Jury Demand
Godfrey vs Branstad Tort Claims Against the State
Iowa Economic Development on the Iowa Workers' Compensation Commissioner's Job Rating
Office of the Governor of Iowa
Follow the Govna on Twitter or on Facebook
Iowa Industrial Commission Website
Iowa Advocate
Huffington Post – Iowa Governor slapped With $1 Million Discrimination Lawsuit By Openly Gay Commissioner
Historical Suicide - Disgracing Your Family's Reputation by Opposing Gay Marriage, Posted by Steve Lombardi on April 26, 2011

Should sexually active women be excluded from receiving workers' compensation benefits?

Steve Lombardi — Thu, 12 Jan 2012 04:00:34 -0600

Human Capital Wears Out

... and only women can get pregnant.

A few days ago the post was about the workers’ compensation appeals process and a woman whose initial ankle injury cascaded into a medical condition for her low back pain and then treatment for depression. Her frailness brought back an economist’s maxim about the human condition of an aging population. That’s why the subtitle of this blog is what it is, human capital wears out. But how the insurance industry and the law view the human condition leads me to think one day the fact women get pregnant may be used against them in the claims process. If you think that notion is far fetched, think again. Shortly after the Pease case was reported a lawyer asked me a question with very similar issues. And so today we discuss whether doctors can refuse to do surgery after a work injury unless female workers stop having sexual relations.

Absurd you ask; absolutely but that’s where they are heading.

FACTS: Client has been treating for a torn rotator cuff. While off work he’s getting weekly benefits (TTD). After 6 months of conservative care the medical doctor prescribes surgery and the client agrees to proceed with surgery. It then comes to the attention of the treating doctor, perhaps based on conversation or on preop blood work or whatever, that client is a smoker. MD tells him he needs to stop smoking for 6 mos before he will perform the type of procedure that he recommends. Now I can fully appreciate that smokers don't heal as well as non-smokers do, but get real, are we going to delay medical treatment based on patient habits? If so is sexual activity similar as a bad habit?

Here is the question my friend, the Chicago lawyer, posed.

LEGAL ISSUE: If the doctor says no to surgery until after the injured worker stops smoking, then is there an ongoing claim for TTD and, if so, for how long, or is the claim one of intermittent TTD, interrupted by PPD during period of smoking withdrawal, or none of the above?

]]>SUMMARY: For those of you who don’t understand the legal jargon allow me to simplify the issue and the underling facts. A worker is injured and the company doctors say he needs shoulder surgery (In my client's situation it is surgery on his spine for a ruptured disc). But the worker has a bad habit of smoking cigarettes, not very unusual for people to smoke. The doctor says no surgery until you stop smoking because the outcome will likely fail to resolve your medical problems. This is not the first case I’ve seen with this issue; it seems to be the current soup de jure in Iowa workers’ compensation circles. We will shortly file a case with the same issue. Here is the legal issue: Is the employee entitled to receive weekly benefits while they attempt to stop smoking or indefinitely if they are unable to stop smoking?

As I pointed out we have this exact issue in one of our cases and we allowed it to go on without resolution and now the doctor has just released the patient without surgery and declared him at MMI. The underlying spinal condition still exists and the symptoms persist, but the insurance company thinks they are off the hook. We are now left with the same diagnosis but no resolution of his symptoms. Where does this end or does the patient have to suffer lifelong spinal pain?

Here is what I thought at the time. The smoking isn't a condition created by a work injury; it's basically as you describe, a self inflicted wound or a choice having to do with a personal habit adding nothing to the employer's trade or business. As such it's nothing that is causally related to the work injury or work. But it is “medical condition” of the patient and the employer takes the employee as he is; not as the employer wants him to be. People aren’t perfect; they are exactly the opposite, imperfect. Some smoke, but that's all part of the human condition. Human capital wears out so the older you get the more physical problems that exist. And if we can exclude for smoking cigarettes then excluding for weight loss while we wait for the patient to stop eating can’t be far behind. If that be the case these cases, medical and legal, will have no end in sight.

What is the relevance of a system that isn’t in touch with reality?

This is what Occupy Wall Street is about, but OWS has no leader that can articulate a clear message to solidify those who are disenfranchised and no longer find this American economic system relevant.

What bothers me about what the doctors are doing is that smoking and eating aren't different in terms of being a personal choice. If cessation of smoking cigarettes is a reason to do or not perform surgery, than isn't also eating or not eating (weight loss) a valid reason? Where do we stop and start?

Stand up if you’re not overweight on an insurance chart. You get my point, we are all overweight. If the law is going to have any relevance to people it has be realistic in terms of what we consider a game changer. But my colleague adds another layer to this argument that I hadn’t considered.

Colleagues Comment: Perhaps the distinction is that smoking impedes the recovery because of its effects on the oxygen supply in the body and the red blood cells and all of the stuff you already know about. I hadn’t thought about the eating analogy. Pregnancy also interrupts medical care. How is that handled in Iowa?

Yeah what about pregnancy and female medical issues? Can a doctor tell a female patient she can’t have surgery unless she stops having sexual intercourse because a pregnancy will interfere with recovery? Where do we start and stop? And when is sexual activity, like smoking or eating relevant?

Today's music video is a play on words. Never assume without knowing. The name of the group isn't what American's think of when they see the word Viagra. This groups name is VIA Gra.

It’s a play on words, the first three letters stand for "vocal-instrumental ensemble" in Ukrainian, and "gra" means "game" (or "play") in Ukrainian.

Wrong-way Interstate Accident Reports to December 20, 2011

Steve Lombardi — Wed, 11 Jan 2012 04:00:13 -0600

Here are another 12 wrong-way interstate highway driver accidents in the news. This group includes wrong-way driving events from the following states: Connecticut (intoxicated driver); Alabama (driver being sought); Texas (intoxication manslaughter); Montana (driver reportedly charged with six misdemeanors including driving under the influence and drug possession.); another Montana wrong-way on I-90 (appears to be a mental health issue); Wisconsin (erratic driving with cause unknown driver died), South Carolina (I-26, DUI arrest); Texas (Sam Houston Parkway, driver died, cause not stated); Montana on Highway 40 (driver died cause unknown); Forth Worth, Texas on I-35 and arrested for suspicion of intoxication manslaughter and endangerment of a child; Lake Mills, Wisconsin on I-94; Houston, Texas on Highway 290, raw video still working; and Montville, Connecticut (charges related to drunken driving).

"Let's take away their right to buy booze. Taking away the driver's license isn't enough."

Wrong-way driver charged with DUI
Norwich Bulletin
4, 2010, Ellen H. Noordzy, 22, was reportedly driving the wrong way on the southbound side of I-95, in the area of exit 93, when state police said she struck a southbound car head-on. The two occupants of the car Noordzy hit, Bruce A. Wall, 22, ...

]]>Wrong-way driver sought after wreck sends 3 to hospital
Sand Mountain Reporter
A wrong-way driver caused a two-vehicle wreck Thursday night that sent three people to the hospital and has spurred a search for one of the drivers involved. According to Albertville Assistant Police Chief Maj. Jamie Smith, a 2002 Toyota Camry driven ...

Charges Upgraded against Wrong-Way Driver
MyFox Dallas
FORT WORTH, Texas - Tarrant County prosecutors have raised the charges on a wrong-way driver from intoxication manslaughter to murder. The district attorney's office said it felt as thought the case against 25-year-old Brittany Burton had special ...

Car driving wrong way hits patrol car on Interstate 90
Helena Independent Record
She was driving her 1995 Chevrolet Corsica eastbound in the westbound lane near the Pipestone exit, west of Whitehall, just after 7 pm, authorities said. After receiving several 911 calls from motorists about a wrong-way driver, a Jefferson County ...

Montana Minute: wrong-way driver; suspect caught; MHP ceremony
KRTV Great Falls News
Darrell Shepherd, a semi truck driver who claims someone was chasing him the wrong way down the interstate, pleaded not guilty in Missoula. Shepherd faces three counts of felony criminal endangerment. Several drivers had to swerve out of his way to ...

Wrong-way Driver Killed on Highway 15
WBAY
Authorities at the scene of a fatal crash in Outagamie County say the driver who died was going the wrong way on Highway 15. The crash happened at 12:30 Tuesday afternoon just west of the intersection of Highway 76. The sheriff's department says a ...

Patrol: Wrong-way driver forced off I-26, arrested
The State
Since 2010, two people have died in similar wrong-way incidents on the same stretch of Interstate 26, the patrol said. “It is not uncommon for troopers to get reports of wrong-way drivers on interstates. These situations typically end in a serious ...

Wrong-way driver wrecks, closing Beltway 8
Houston Chronicle
A wrong-way driver slammed into another vehicle in a traffic wreck on the west Sam Houston Parkway in southwest Houston early Tuesday morning. The two-vehicle crash occurred on the northbound lanes of Beltway 8 near Bissonnet about 4 am, according to ...

Wrong Way Driver Dies In Head-On Crash
FOX2now.com
A man is dead after authorities say he drove the wrong direction on Highway 40 and crashed into another vehicle. The accident happened around 9:45 pm Thursday near Boone's Crossings in Chesterfield. Police say James Gobble, 35, of Chesterfield was ...

Relatives of man killed in wrong-way driving case in Fort Worth sought
Fort Worth Star Telegram
By Domingo Ramirez Jr. and Alex Branch FORT WORTH - Authorities were searching Sunday for relatives of a man who was killed late Saturday in a traffic accident on the South Freeway caused by a wrong-way driver. The 47-year-old victim who died at the ...

Father grieves for daughter killed in wrong-way driving crash ...
Nicole, a recent graduate at UW-Whitewater, was on her way home from work early one morning in January 2007. She was on I-94 near Cottage Grove when the unthinkable happened.

Raw: Wrong-way driver hits minivan, pickup on 290 | khou.com ...
Three vehicles were involved in a crash caused by a wrong-way driver on Highway 290 Tuesday morning.

Patrol: Wrong-way driver forced off I-26, arrested - Crime & Courts ...
A highway patrolman forced a driver who was travelling the wrong way on Interstate-26 off the road early Wednesday morning, the South Carolina Highway ...

Police arrest wrong-way driver on West Side|WOAI: San Antonio News
San Antonio police said a wrong-way driver was arrested after leading officers on a short chase on the West Side Wednesday night.

Woman charged with assault, drunken driving in 2010 crash on I-95 ...
4, 2010, Ellen H. Noordzy, 22, was driving the wrong way on the southbound side of I-95, in the area of exit 93, when state police said she struck a southbound ...

Wrong way driver causes crash on Bypass 20 - wsbtradio.com
ST JOSEPH COUNTY – Police responded to a wrong way driver between Mishawaka and South Bend Thursday afternoon when a person drove onto an exit ...

How long will it take for a workers' compensation case to be final in Iowa?

Steve Lombardi — Fri, 06 Jan 2012 04:00:12 -0600

Too long; the higher the benefit award the longer the insurance industry will fight through the layers of appellate review available to challenge the result.

Same goes for the worker’s litigation team. Although it takes far longer than lawyers and judges like, no one will suggest changing it for fear their clients would be the ones to lose out. So like it or not, it’s here to stay and I see no reason to believe it will change. If you’re a worker you might be discourage at the length of time it takes, right up until you read the Court of Appeals decision in this case. Then you’ll want the extra layer of the Iowa Supreme Court.

If you’re a taxpayer and are mad about the cost, you too will be disheartened, right up until the day when you get hurt and need the benefits to put food on your dinner table.

There is no free lunch in democracy. There is no fast checkout lane in American jurisprudence. People can fault the system like Monday morning quarterbacks, but this is as good as it gets when it comes to fairness. So get a grip and join me on this ride through the layers of appeal in case no. 09-0724.

No. 09–0724 CEDAR RAPIDS COMMUNITY SCHOOL DISTRICT and EMC INSURANCE COMPANIES v. PEASE
Appeal from the Iowa District Court for Polk County, Scott D. Rosenberg, Judge.

On further review, we address whether substantial evidence supports the workers’ compensation commissioner’s findings of fact. DECISION OF COURT OF APPEALS VACATED; DISTRICT COURT JUDGMENT AFFIRMED.

]]>What happened? Well the injured worker won in the commission, the case was appealed and the Iowa Court of Appeals took away the benefits. Then the case was reviewed by the Iowa Supreme Court who thought the agency got it right and so that court reversed the Iowa Court of Appeals and reinstated the benefits. A lot of work, money spent on lawyers and a bunch of words to just say “Hey injured guy you ought to get paid benefits.” Rules are important in society and in the area of workers’ compensation there are a whole lot of rules and rules about rules. Defense interests like rules because it gives them a bright line to knock destroy someone’s case with little effort. People aren’t perfect, lives aren’t perfect and neither are the lawyers of injured workers or their client’s cases. So let’s take a look at the layers of appeal available in an Iowa workers’ compensation case.

In this case the rule being discussed is the “substantial evidence test" under Iowa Code section 17A.19(10)(f)(2009).

What is the substantial evidence test and why is it important in this case? This test if really important to the defense industry because it allows this industry to argue human imperfection is why the injured person needed medical care. It gives them one more thing to point to in order to avoid having to pay benefits. In other words it can reduce how much they pay. Dick Stevens, a doctorate level economist at the University of Iowa once said to me, “Human capital wears out.” It was Dick’s way of saying when people get old they get tired industry has less and less use for them. That’s especially true in this case as it is with any human being that is aging. In this case Mrs. Pease injured her right ankle on the job; a fact which everyone agreed. And that’s where the fight started. Where the rub came in was what the district court judge referred to as “the nature, scope and effect of the injury.” In layman’s terms that means, “Hey you weren’t perfect when you twisted that ankle, in fact you were aging and wearing out as most humans do so why should we make the insurance company pay for all the collateral damage?” Problems I see with this argument is that we are all wearing out and the employer takes us as we are. No human worker is perfect and every day that goes by we are a little less perfect. If you let employers and their insurance companies pick and choose what they want to pay for and to exclude injuries because of the aging process then we are all in trouble. You know why; because human capital wears out and you’re getting older and frankly wearing out. If aging is a reason to discriminate against Mrs. Pease than so goes it for you and I and we are all screwed.

MEDICAL TREATMENT NEEDS CASCADED

After Mrs. Pease started treating for the bad ankle her medical problems got a whole lot worse for predictable reasons. Because as the problems with the ankle labored on she was soon walking different to avoid the pain and discomfort that goes along with this ankle problem. (Simply put it’s called a change of gait.) The harder and longer a person with a bad ankle tries to avoid using it the more likely they are to develop low back problems. In this case the back pain then started to cause her to miss work for reasons other than the original injury to the ankle. The people trying to get her back to work recognized the fragility of her condition and restricted her activity level and what she could do at work.

So what’s the employer going to do? They fired her, let her go because human capital wears out and they need a newer appliance to do the job. Well, as time passed the injured worker, now out of work and probably sitting at home starts to get depressed about her situation and soon enough she needs some help as she slips into a deeper and deeper depression. It’s not a stretch to see why a lady with a simple ankle injury that makes a back injury worse and who then gets fired for it might get depressed.

THE RUB

And that’s where ‘the rub’ comes into this case. The insurance company for the employer starts to say, “Hey wait, how much of this are we going to have to pay for to treat this aging imperfect human being?” And the employee says, “All of it because all these problems started cascading after the ankle injury and now you guys fired me for being an imperfect human being. While some it existed before the ankle injury, then I was not precluded from the workforce, but now I am.” And the State of Iowa says, “Hold on employer we taxpayers don’t’ want to end up paying for this lady’s medical problems. Remember you and your health insurance company fired her and (I’ll assume) she no longer has health insurance so we need a mechanism to make you guys own up to the problems you’re causing Social Security, Medicare and Medicaid.” The Court system says, okay let’s come up with a rule and we’ll call it the substantial evidence test that says, if there is substantial evidence to support the commissioner’s finding then the commissioner wins and we can move down the road of the appellate process.

SO WHAT DID THE DOCTORS SAY?

The psychiatrist and the surgeon didn’t need any help quickly arriving at the conclusion the lady’s depression had a lot to do with the original injury; yeah she wasn’t perfect and maybe her body and mind were of the type that she’d be susceptible to this kind of depression, but that’s life, because she had surgery, the injury makes it difficult for her to stay active and it’s a “pretty clear case of post-surgical depression”.

WHAT’S THE EMPLOYER SAY?

“Oh my!” says the employer. Are you kidding? We can’t have that being the opinion so off we go to the doctor shopping network and find us a doc whose opinion we can predict will say exactly the opposite. They get that opinion and we are off to the races with a fact dispute that only the Commissioner and then three layers of appellate court judges can decipher, argue about and make sound like this is all that important requiring hundreds of hours to ponder.

No way! Yes, way. But that’s not the end of it, because in this case the lawyer gets busy and works the case.

The injured lady’s lawyer gets a vocational expert to weigh in on the issues and that expert says the injured worker is no longer employable at all. So here comes a claim for permanent total disability. Can you say lifetime benefits?

WHAT’S MALINGERING?

But what did that insurance company doctor’s opinion conclude? He concluded (drum roll please) that none of the depression was caused by the injury and (another drum roll) “Pease was malingering”. Malingering? That’s a fancy word for faking it. The medical profession likes its words long because they sound more important and the longer the word stays on your tongue the more insidious it sounds. Does he mean she even faked her ankle injury? You know the one that required the surgery. Wow, she’s quite talented if she can do that. Maybe she should have been an actress rather than working for the school district. But let’s give the company doctor the benefit of the doubt and assume the malingering he’s talking about is exaggeration rather than outright faking it. He probably referred to secondary gain – a psychological trait that encourages a person to like the attention they get from being injured. You see it’s not all about money. Sometimes it’s about not having to take out the trash or doing the dishes. I have no idea in this case so please don’t ascribe anything to Mrs. Pease, but the Court said that is what the company doctor stated in a report. In my 30 years of practice there are more reports of malingerers than there are malingerers.

THE RULING

For some reason the industrial commissioner didn’t buy the insurance doctor’s opinions even though those opinions were opined and served in the finest porcelain China that money can buy. What the deputy found (deputies hear cases and then the Industrial Commissioner, the deputies boss, reviews the case if one of the parties doesn’t like the outcome, throws a hissy fit and files an appeal. Of course in high dollar cases the insurance industry falls in love with these layers of appeals because it causes the injured worker’s case to be delayed and with delay it’s more likely the worker will tire and settle cheaper than what it costs to pay what the deputy’s decision is worth. And of course in this case the finding was permanent total disability, meaning lifetime benefits. Yeah you guessed it we are in for the longer haul through every layer of appeal humanly possible.

Wow, we’ve gone from an ankle injury, through surgery, a worsening back, then into depression, being fired and now a lifetime of paying someone to sit at home and do nothing. Is it just me or does anyone else who is reading this see anything wrong with what’s gone on here? I’m finding it difficult to discern who won. But let’s not get ahead of ourselves because there are still the layers of appeal to wade through.

At this point the employer’s insurance company still isn’t’ happy and appeals to the commissioner. The commissioner tweaks the facts, straightens them out on paper for the deputy and files the final agency opinion on the matter. This is one of the reasons why the Govna, Govna Branstad that is, doesn’t like this C’mnishna. Guvna Branstad would rather Mr. Godfrey just write all workers are fat, lazy and aging and that’s got nuttin to do with work. Because C’mnishna Godfrey won’t play the Guvna’s game the Guvna wants him gone. Gone, meaning sayonara Senior Godfrey. Godfrey said no way Jose’ Branstad and refused to go quietly. The Gov was none too happy, kind of like the insurance guys that paid to get him elected, so he lowered Godfrey’s pay to the lowest level he could hoping Godfrey would quit. But the C’mish ain’t going anywhere so he still gets to write the agency findings and the Governor is still stomping his little feet in the not-so-oval office on State Capitol Hill in Des Moines.

Done, you ask? Not quite. Let’s get back to the case.

The employer appeals to the Iowa District Court and asks a judge to review the case. But once out of the agency there are certain rules that apply and those rules constrain the judges from just saying they don’t like the decision and reversing it. District court judges can’t just rewrite the decision according to their own political philosophy. If facts are in the record that support the commissioner’s reasoning and final decision, then everyone above is stuck with it; even if they don’t like it. At the district court level the decision can be changed really only for correction of errors of law, not to rewrite the entire fact analysis; unless the Commissioner got too fancy with his reasoning and found facts that come out of thin air. Well, in this case the District Court Judge found there was substantial evidence for what the Commissioner concluded and pretty much said, “Yeah you were right, I’m not changing anything.”

Guess what? You guessed it, the insurance company remained unhappy as a clam at low tide with clam diggers approaching. The insurance company with its legion of lawyers filed another appeal, this time to the Iowa Court of Appeals. On review at that level the insurance guys finally won one for the Gipper. The Iowa Court of Appeals was not impressed with the medical evidence offered by the injured worker and after a lengthy review found substantial evidence did not support the commissioner’s findings on causation. Now the insurance company is smiling a big toothy grin and thinking, “Ha! We won! Take that injured worker!”

But this injured worker has a persistent legal team of her own and they file a further appeal to the Iowa Supreme Court. That court upon review finds the Iowa Court Appeals decision should not prevail reverses that opinion and finds the Commissioner has substantial evidence to support his conclusion. That means the Commissioner’s reasoning carries the day and the worker wins a lifetime of benefits.

So all this time, money and effort and we are right back to where we started. The problem, as I see it, isn’t with the result, it’s with the time it took for the final decision. Look at the time frame in this case.

Injury date: January 26, 2005

Court of Appeals: April 8, 2010

Iowa Supreme Court Decision: December 16, 2011

Read the decision, print off a copy of the case so you can be prepared for your case, by following this link.

Is Attorney Tom Wertz the Knute Rockne for the injured workers over in Cedar Rapids, Iowa?