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Articles on Brian Kelm's Legal Cases
Audit: Presiding Judge Encouraged Inappropriate Communication: WEST [2012-07-16]
The presiding judge of the Utah Labor Commission encouraged administrative law judges to initiate "questionable communication" with medical panelists in an effort to improve the quality of medical reports, according to an independent audit released last week.
One of the seven judges on the commission went so far as to order changes to five medical reports, involving three cases, from January of this year until June, the report said. Although the report did not mention her by name, the commission reported on June 14 that Administrative Law Judge Debbie Hann ordered the chair of a medical panel to rewrite a report and destroyed the original without notifying the attorneys on the case.
Medical panels are used to resolve disputes between treating physicians and independent medical examiners.
The commission suspended Hann and Adjudication Division Director and Presiding Judge Richard La Jeunesse last month. Hann has since returned to work, but La Jeunesse remains on suspension, a spokeswoman for the commission said.
"The presiding ALJ, who also serves as the division director, encouraged changes to the medical panel reports as a way to train medical panel chairs to write useful reports," the independent audit report states. "The presiding ALJ explained to one medical panel chair, who had initially resisted making the changes requested by the ALJ assigned to the hearing, that the changes were necessary in order to clarify the medical panel findings."
The commission had reported previously that Hann had instructed the medical panel chair not to rely so heavily on the American College of Occupational and Environmental Medicine treatment guidelines. Utah has not adopted any specific treatment guidelines and Hann did not want reports to make it appear the commission was favoring one set of treatment guidelines over any other.
The audit, written by David Pulsipher and Rachel Dryer of the Legislative Auditor General's Office, recommended that the Labor Commission tighten controls to ensure that no further inappropriate communications between judges and medical panelists take place.
The auditors also recommended that the commission create a training program for medical panel chairmen so they are aware of what the commission wants to see in medical reports. The auditors said the Workers' Compensation Advisory Council could provide guidance on developing a training program.
Labor Commissioner Sherrie Hayashi asked the general counsel for the governor's office to order an audit after she discovered that Judge Debbie Hann ordered a medical panel to write a new report and then destroyed the original without telling attorneys.
In a letter accompanying the audit report, Hayashi said she accepted the findings and would take steps to ensure that no further inappropriate communications between judges and medical panelists take place.
"The commission has determined that the ALJ and the director's conduct in the subject cases was inappropriate," Hyashi said. "Specifically, that conduct violated explicit and implicit statutory requirements in the Utah Workers' Compensation Act and the Utah Administrative Procedures Act. It also violated commission policy. The commission is in the process of taking appropriate personnel actions based on this inappropriate conduct and other factors."
Brian Kelm, a Salt Lake City attorney who represented a claimant in one of the cases where a medical report was altered, commended Hayashi for the "transparent, open and fair" process she used after learning about the incident.
"I'm confident that this will never happen again given the hoopla and drama surrounding it," Kelm said on Friday. "You can be sure that these judges don't want any more spotlight on them, so I think they are going to be more than sensitive to this and never in a million years will they do it again."
Kelm said he also supports the recommendation that medical panelists receive better training from the commission.
But Kelm said he would also like the commission to address the larger problem of bias among its medical panelists. He said most of the panel members are former independent medical examiners who worked for insurance companies.
"The bigger problem in Utah is that lately it seems like many of the medical panelists came from an insurance/defense background so they have that bent to them already," Kelm said. "In the good old days, they were most often retired doctors who came from a treatment background not an insurance defense IME background."
Kelm said if the commission does initiate a training program for medical panelists, it should instruct the doctors that the Utah Workers' Compensation Act requires them to resolve all doubt in favor of the injured worker and his or her family.
The auditor's report and Hayashi's cover letter are here
Senior Editor, WorkCompCentral
Auditors Reviewing Multiple Areas of State's System: WEST [2012-07-03]
The Utah Legislative Auditor General’s office will begin this month an audit of the Labor Commission to determine why it is taking so long for claims to close and also to explore whether there is bias for or against injured workers among some administrative law judges and medical panel doctors.
Utah state Rep. Wayne Harper, R-Taylorsville, said he requested the audit in May and it will begin later this month. Harper said in an email that the audit should be finished by December, leaving “sufficient time for legislation to be drafted or other internal actions to be taken to address the audit findings before the 2013 legislative session.”
Harper said a constituent complained to him in 2011 about delays and other problems with the Labor Commission. Harper said other individuals have complained about a “common pattern” of delays and other problems.
“The issues to be addressed include lengthy delays in the appeals and review process, lack of impartiality in the medical review panels, potential bias by some administrative law judges and unnecessary delays between action steps in the Labor Commission,” Harper said.
An ad hoc audit team with representatives from various state agencies is currently reviewing the actions of a workers’ compensation judge who allegedly destroyed a medical panel report she deemed “deficient,” and her supervisor who reportedly authorized the action.
In at least three cases, Judge Debbie Hann ordered a medical panel to write a new report. After issuing the order, Hann destroyed the original report from the medical panel without telling attorneys.
The Labor Commission is also reviewing whether Adjudication Division Director Richard LaJeunesse approved Hann’s actions.
Hann and LaJeunesse have been suspended.
Claimants’ attorneys say there were few differences between the first reports, to which Hann objected, and the second reports from the medical panels. The claimants’ attorneys said they lost all three cases.
Hann declared one report deficient because it relied too heavily on the American College of Occupational and Environmental Medicine (ACOEM) treatment guidelines, which haven’t been adopted in Utah. Hann rejected another report for ignoring her finding of facts and a third for using an improper standard of causation.
Brian D. Kelm and Ben Davis, both claimants’ attorneys in Salt Lake City who worked on the cases in which Hann is accused of improperly destroying evidence, said they hope the audit might help expose problems of medical panel doctors who are biased against injured workers.
Senior Editor, WorkCompCentral
Tour De Life
By Saul Raisin and Dave Shields
Reviewed by Brian Kelm
Brain Injury Association of Utah
This is a story about extraordinary triumph in the face of extreme adversity which is a must read for any brain injury victim and their family. I say this not as an aspiring, ageing, cycling fanatic ... not as an attorney who has fought to secure disability benefits for the last 20 years for TBI patients ... and not as a friend of author Dave Shields and cyclist Saul Raisin. No, this is simply one of the best books you could read or give to understand and motivate survivors of this debilitating disability.
Raisin was no stranger to adversity before a horrific crash in a French cycling race nearly cost him his life. Born with a severe Scheuermann's kyphoscoliosis (not the more common side to side scoliosis), this hunchback of sorts resulted in an exceptional aerobic capacity which Raisin started to cultivate through bicycle racing in his teens in his hometown of Dalton, Georgia. By 20, he was poised to become the next big thing out of the U.S. and was proving his ranks for the elite pro cycling team Crédit Agricole out of France. This would all change on the afternoon of April 4, 2006, at a bike race in France when the 23 year old would hit, it is believed, a patch of loose gravel at a very high rate of speed, skidding him to the pavement and busting open his helmeted head.
As luck would have it, the crash occurred not far from Angers, France, where a world-renowned brain surgeon was on call. Emergency brain surgery was promptly undertaken and all prognoses were grim. To his parents in Dalton, Georgia: come to France immediately… not looking good... vegetable... never walk again... say your last good byes... and worse. But unlike many TBI survivors, despite insurmountable odds, Raisin literally rose from dead and has reclaimed his life with a vengeance. This is his story.
TBI survivors and family will readily relate to his struggles with the diffuse conditioned elite athlete to being totally dependent on others. Movements, behaviors, thoughts and sensations are all compromised and uncertain as to their return, if ever. Compound this with communication difficulties of being in a foreign country and not speaking the language. To say that his parents are equally the heroes of this story, being there for him every literal step of the way, is an understatement. And we all know that a critical factor in improving the odds for TBI recovery is family support. Part one of the novel is written from the parents' perspective - since, obviously, Saul was not exactly "there" for the first month or so of the ordeal!
The second half of the book is written from Saul's perspective. He and Shields do a remarkable job of revisiting what must have been an extraordinarily difficult walk down memory lane, both from a "recall" standpoint, as well as the pain of reliving it. From agony, anguish and confusion to ultimately, walking and talking and more, Raisin's boyish enthusiasm continues to surface and gradually propels him to a miraculous recovery.
What is equally impressive, however, and not as common, is the support, beyond financial and emotional, that his French cycling team gave him. Rather than write him off as another casualty of the sport and conceding the assumption that he'll never ride again and is no longer an asset to the team, Crédit Agricole stood by him, and continues to do so to this day. In this day of disposable employees (in this case "athlete"), corporate greed, no holds barred winner take all, Crédit Agricole must be commended. Unfortunately, the team's French doctors, as of November 2007, would not clear him to return to the peloton, despite his seemingly indefatigable energy and prowess on the bike. However, where one door closes, another opens, and if you're a fan of fate, or "things happen for a reason", then the silver lining around the world continually come in at his "Guestbook" at www.saulraisin.com. Information on his Raisin Hope fund, which he hopes to morph into a flush, permanent Foundation, can also be found at his site. Bigger things appear to be in store for Raisin than winning a bike race.
I would be remiss if I did not acknowledge the unacceptable amount of typos in the book. For some reason, the inattentive proofreader was particularly derelict in the earlier pages of the book. Regardless, these minor grammatical errors and misspells pale in comparison to the quality of the read. Many of them you would skip right over without even noticing unless you're a slow reader or the kind who reads and re-reads passages (which I'm routinely guilty of!!). The author indicates that they will be remedied in future editions of the book, of which there will hopefully be many.
Amazingly, both authors, Raisin and Dave Shields live in Salt Lake City. One year ago, Raisin met an Aleeza Zabriskie in an airport . If you're a cycling fan, you know this name. Yes, she is the sister of world class CSC team rider and Tour de France stage winner Dave Zabriskie, also of Salt Lake. And no, Dave didn't introduce them. Small world indeed. Saul and Aleeza recently married and now call Salt Lake home. From the electrifying cover to the last sentence, this book is still being written and is far from being over. Hang on for the ride and stay tuned for the finish!
Brian Kelm is a disability attorney in Salt Lake City, assisting TBI and other permanently, totally disabled claimants for workers' compensation and Social Security Disability benefits. He can be reached at firstname.lastname@example.org.
Closing the Window
By Shane Johnson
City Weekly | City Week
Pg 18 | December 2, 2004
Utah's no-fault workers' camp system offers injured workers an "incentive."
Time may get tighter for Utah's injured workers.
A state labor commission subcommittee recently signed off on proposed legislation to reduce from 180 days to 90 days the time workers have to report on-the-job injuries in order to be compensated. Also included is a provision to dock 10 percent of any permanent disability settlement to which an injured worker is entitled should they fail to report the injury within 30 days of occurrence, effectively making that the new standard.
Richard Thorn, a member of the commission's workers' comp advisory council, explained at a recent subcommittee meeting that insurance industry studies show that early medical intervention is key to getting injured workers back working, and off of carriers' dime.
"I don't think we want to be punitive to a guy who gets hurt," said Thorn, "adding the penalty would merely. “create a little bit of an incentive" for workers to report injury quicker.
Employee advocates Ralph Astorga, a union representative, and attorney Brian Kelm were unaware they were appointed to the subcommittee until after its first meeting. Both voiced displeasure at the second. "If we're going to fix something, it should be because something’s broke," said Astorga, questioning Thorn's impetus for tightening the reporting window.
Insurance companies, "a lot smarter than we are," say that a nine to 14-day cutoff is the best, Thorn responded. "Originally, we were thinking a week."
For his part, Kelm later characterized Thorn's plan as the same old s—t; just anti-claimant legislation proposed to keep the downtrodden down."
Kelm agrees that early medical treatment works but says a less punitive approach would be to educate “employers and employees that it is a crime to fail to report an industrial accident.” Penalizing workers only “trips them up more” in an already onerous system, he said. Citing employers who interfere with reporting, Kelm added a 10 percent penalty for them in the draft proposal. Either way: “It just increases litigation,” he said.
Joyce Sewell, the commission’s industrial accidents director, noted that some employees, loath to upset management or co-workers, endure nagging injuries quietly until they escalate. Plus, all too often employers throw up their own roadblocks.
“I see it every day,” Sewell said. “’If you report this injury, you will be fired.’ And they are fired.”
In so-called “right-to-work” Utah, there is no “protection for injured workers who are threatened or fired for reporting an injury,” said Sewell, who suggested the advisory council add that safeguard.
“Are you suggesting that we change from a right-to-work state, Joyce?” Thorn asked, followed by a cacophony of laughter on his side of the table.
Kelm says injured workers complain to him regularly of employers who coerce them into seeking care for on-the-job injuries through personal health insurance. Still others are unaware they have any right to workers' comp relief.
David Inlay, formerly a salesman for an industrial-solvent company, torqued his back more than three years ago rolling a 50-gallon drum of chemicals out of a bowling alley. His employer sent him to an IHC WorkMed clinic, where he received a couple of treatment until staff there said additional physical therapy wouldn’t be covered.
After the accident, Inlay was put to work in collections. But when he told bosses he’d need two more weeks of light duty, they placed him on latrine duty. He was subsequently fired for refusing to perform janitorial duties, which he argued weren’t in his job description and didn’t accommodate his physical restrictions.
The Utah Department of Workforce Services agreed, awarding Inlay temporary unemployment compensation, but he couldn’t find a job for a year after his firing. Throughout, he’s gone out-of-pocket for medical care to the tune of $4,000, he said. Until just recently, Inlay had no idea his employer’s worker’s comp carrier was responsible for his medical care and wage replacement.
“I’ll have to go in for (chiropractic adjustments) the rest of my life,” Inlay said. But from all the horror stories he’s heard, he’s reluctant to take on the carrier for the benefits he has coming. Just to get a hearing before the labor commission - also required under the proposed law of injured workers seeking an exemption from the reporting deadlines – takes eight months or longer. During the interim, laid-up workers must fend for themselves.
When the proposed deadline rollback goes before the full advisory council on Dec. 13, Kelm is convinced the vote will split evenly between the employer/employee factions. He nonetheless expects it to be forwarded to the Legislature without the advisory council’s endorsement.
Attend the Meeting
City Weekly | Letters
January 6, 2005
Regarding James Fox's Letter to the Editor ["Defending the Downtrodden," Dec. 16 City Weekly] referencing' "Closing the Window" [Dec. 2, City Weekly]
Several misrepresentations need to be addressed.
First, I, the alleged "champion of the downtrodden" (at least Fox got something right), was not even on the Work Comp Advisory Council until last month, which was nearly one year after the legislation he misquoted, was drafted. Thus, I did not "persuade" the "advisory committee" (sic) to pass what was already unanimously agreed upon by both management and labor before I even sat on the Council.
Second, the new attorney fee rule, to go into effect Jan.1, 2005, does not allow charging $125 per hour (try hiring an attorney for any purpose for less, by the way) "for work they previously provided for free." Actually, injured workers could not find an attorney to review a case wherein an insurance company may've been overreaching and taking advantage of an uneducated claimant and offering a less than reasonable settlement. No work comp attorney in his or her right mind meets with an injured worker for a morning, or more, carefully reviews their case, perhaps 2 to 5 inches of documents, evaluates whether a settlement is judicious or not, and recommends signing off and opens themselves up to liability/malpractice, for free.
Yes, people call me several times a day for advice and I freely give it out in 5 to 20 minute phone calls, as does every disability attorney I know. That will not change. However, there has never been an option for a claimant and attorney to get together for a few hours to review something in great detail, until now. The only attorney fee rule in place now allows a contingency fee of 20 percent of whatever is generated up to $20,500, then the fee drops to 15 percent of the next $20,500 and drops further to only 10 percent of anything generated over $41,000, capped at $10,352 and this is not changing. Try finding an attorney to get you a $200,000 settlement and only charging $10,352-a mere 5 percent of your settlement! Why do you think there are less than 20 of us out of 6,000 attorneys in this state who will even touch a work comp case?
Third, this sliding downward scale is not changing, so where Mr. Fox comes up with the blatantly misrepresented, delusional. Accusation that "The changes also allow claimant attorneys to grab an additional 5 percent contingency fee" is incomprehensible.
If one would actually attend the Advisory Council meetings (open to the public), instead of spouting off completely erroneous information from the sidelines, one can actually intelligently understand the content discussed and contribute toward making the system work better for injured workers and their families.
Salt Lake City
Employers should ask sub's for proof of WC insurance
By Doona K. W. Johnson
The Intermountain Commercial Record & Salt Lake Times
Friday, May 19, 2000
Salt Lake City, Utah
Labor Commission / Workers' Comp
"I've only seen a very few generals prove their subs' work wasn’t a normal part of their business." – Michael E. Dyer
“The tax law also doesn’t get scrutinized nearly as intensely because the time pressure isn’t as great,” said Brain Kelm, a sole practitioner who represents injured workers in workers’ comp claims.
A recent case of Kelm’s centered around this issue. Kelm’s client Tony Mataele had his own cement business but worked two or three days a week in spring and fall for his cousins, Fauniteni “Danny” Pauni and Seneti Pauni. The Paunis had a tree trimming business, The Tree Expert. Mataele worked as a tree climber and trimmer. He was paid by the tree, based on its size and the complexity of the job. The Paunis solicited jobs, negotiated prices with clients, and executed contracts. They told Mataele how and when to get to the job sites and what needed to be done. The Paunis never asked Mataele for proof that he had his own workers’ comp insurance coverage.
Mataele was injured while he was up in a tree trimming a long branch. The branch bounced up from the ground and pinned his leg, breaking it in three places. He was trying to get his leg free and get to the ground to summon help when he passed out and fell out of the tree. He is now quadriplegic, able to move only his left arm and hand. He sought permanent total disability benefits from the Paunis, who agreed to stipulate to his disability.
The Utah Code Annotated Section 34A-2-413 (10) states that any worker who loses the use of both hands, both arms, both legs, both feet “or any combination of two such body members” is permanently and totally disabled. Findings of permanent disability by the Labor Commission are final.
The Paunis had no workers’ comp coverage and claimed Mataele was an independent contractor. But Administrative Law Judge Richard La Jeunesse ruled the law said otherwise.
The Utah Code Annotated of 1995, Section 35-1-42 (6A) says if you employ a subcontractor, and that sub’s work is part of your business, you’re what’s called a statutory employer under workers’ comp law, though maybe tax law would say something different, Also, if you have the right to control what your subs do, even though you don’t choose to exercise that right, you’re a statutory employer. Those are the two tests that determine whether you’re required to carry workers’ comp insurance on your employees.
ALJ La Jeunesse said the right to control an employee’s work is the primary consideration used to determine if an employment relationship exists. The ALJ cited the Utah Supreme Court’s ruling in Averett vs. Grange in 1995, where the court was a statutory employer because the work performed by the subcontractor was part of the general’s usual business.
"I’ve only seen a very few generals prove their subs’ work wasn’t a normal part of their business.“ Dyer noted, “Most of the time the argument goes: If you build houses, how can you say pouring a foundation isn’t part of your work? A while ago a general won case like this that arose during construction of the Salt Palace, where a sub they hired to install a very specialized truss was injured in the process. “The general said, ‘We’ve never done one of these things in our lives and wouldn’t know how to begin; it’s not what we do,’ and the Commission believed them. But that’s very rare.
ALJ La Jeunesse ruled that the Paunis controlled the work Mataele did for them, and also found Mataele’s work was a normal part of the Paunis’ business. The Paunis, as Mataele’s statutory employers, were therefore responsible for paying his medical bills and disability benefits after his work injury.
Kelm said deciding the independent contractor issue isn’t always merely a matter of plugging in the relevant statute, however: “It’s a balancing act. You have to line up all the criteria and weigh them one against the other. ALJs rely heavily on case law when doing this.
They consider who supplies the tools of the trade; that’s one of the biggest indicators. They look at method of payment. A worker who is paid by the job is more apt to look like an independent contractor than one who gets paid by the hour.”
Kelm said the issue of control over a worker’s activities can also get murky in real life, too. “It’s got to be more than just telling someone where something needs to be done,” he added. “Is the employer actually setting specific hours for work to be done, or just issuing a deadline? Independent contractors don’t always have to work specific hours as long as they get the work done on time,” A hirer who provides supervision on the job site, is more likely to be seen as a statutory employer, Kelm said, adding, “The right to hire is almost a sure giveaway that the hirer is an employer.”
Kelm said the Paunis would have had a better chance of making their argument stick if Mataele had worked for other tree trimming business besides the Paunis’. “Also,” he continued, “part of what really sank them is that tree trimming was their main business. If my client had come out to work on their company truck, for insurance, or sharpen their saw blades, he would have been more likely to qualify as an independent contractor. That’s where the ‘part and process’ clause ALJ La Jeunesse cited comes in.”
The ALJ invoked another part of the Utah Code Annotated, Section 34A-2-704 (11), to make sure Mataele was paid. Because legislators who the law wanted to make sure every worker was covered, they established the Uninsured Employers’ Fund (UEF). Under this law, the ALJ has the power to order the employer to reimburse the UEF when it pays benefits to an injured worker on the employer’s behalf, along with 8 percent interest on that money and attorney’s fees incurred in collecting it, plus a 15 percent penalty on the total amount of the award for violating the law by not carrying workers’ comp coverage.
Because UEF attorney Sheryl Havashi knew from previous experience that Mataele’s claim was likely to result in an award of benefits, the UEF started paying Mataele’s $200 per week before the hearing. But Mataele’s compensation as determined by law turned out to be $350 per week, resulting in an accrued balance owing. ALJ La Jeunesse ordered the UEF to pay Mataele accrued benefits of $11,079 plus interest. The UEF must also pay Mataele $350 per week, from the date of ALJ’s order until March 30, 2005, when he turns sixty-five. At that time the UEF will pay him either 36% of the current state average weekly wage or $350 per week whichever is greater. These benefits are to be reduced, as the law allows, by 50% of the amount of any Social Security benefits Mataele receives.
The UEF must pay all related medical expenses, and must pay Mataele a set rate for every mile he travels to obtain treatment. Fees for Mataele’s attorney, Brain Kelm, are to be deducted from accrued amounts due and paid directly to Kelm’s office. The Paunis must reimburse the UEF for all these benefits and also pay the fifteen percent penalty on the entire amount of the award.
Kelm said his client got what he was owned under the workers’ comp law, but added that it isn’t enough to keep him in luxury: “the law provides for disability benefits payments of two third of a worker’s average weekly wage. And Mataele had some additional health insurance through his wife’s employment, so he got extra help there, but it’s still very difficult for him. He will have to live very frugally from now on, even with the UEF paying his medical bills.”
Dyer said the only that might have saved the Paunis was asking for written proof that Mataele had his own worker’s comp insurance. “All these modifications of the law came into effect at different times. This one changed in 1994. It says if you rely on your sub’s certificate of workers’ comp insurance as part of the independent contracting process, you have a safe heaven and aren’t liable. That way the subs get paid if they get hurt, which is what the law cares about.”
New Year' Wishes Show Attorneys Have Hearts
New Year 1998 / Interviews
By Donna K. W. Johnson
Sole practitioner Brian Kelm told us, “I wish medical technology could develop a compound that could cure all disease and disability, re-grow limbs, and alleviate pain. But if such a thing couldn’t be invented, I’d like to see the 2002 Olympics moved somewhere else.”
Everyone hates attorneys but love their own attorney
The Intermountain Commercial Record & Salt Lake Time
Friday, November 21, 1997
Salt Lake City, Utah
Workers’ Comp / Occupational Disease
“After all, I paid for 21 years of insurance and thought they could cover me when I had the bad luck to need help.”
In 1969, Charles Nobles began working as an inspector at Thiokol Corporation, an aerospace engineering company. In going from one area to the next, he was exposed to such volatile chemicals as trichloroethylene, toluene, xylene, methyl ethyl ketone, chemlok, and others. Nobles spent 25 percent of his time in the “mix room” near another room where a large vapor degreasor using trichloroethylene for a cleaning and mixing solvent. He also inspected missile parts coated with a special chemical mixture including cabosil, asbestos floats, HP polymer and LER resin.
Nobles wore protective gear whenever it was mandated, about 10 percent of the time. “We had access to read all of the labels, material data and handling sheets.“ Over the years, they have since quit using many of those chemicals and instituted new safety precautions and equipment to lessen the effects. "We knew the danger, but though we were doing all the necessary precautions to protect ourselves. In my case, it wasn’t sufficient.”
Ron Reese, environmental engineer for the division of air quality, confirmed that over the years limits for emission levels have changes, mostly going down. Before the 70s, people were exposed to much higher levels of toxic substances. Reese noted that the nose is not a good detector, because people have different tolerances for things they breathe. He said that makes it tough to predict someone’s tolerance to an air pollutant.
By 1986, Nobles experienced unexplained symptoms and pain in his knees and legs. The pain and problems for progressively worse until, in spite of a job change, he was completely unable to work and on August 28, 1990 he quit his job. “I just could not function in my job. I lost my train of thought (because of the pain) and could not concentrate.” Not knowing the source or reason for his pain was an additional hardship. So he took a route that was going to be as torturous and frustrating in its progression as what he was then experiencing in pain. He sought exhaustive medical treatment and specialist’s opinions, with little to no relief. Limited in his ability to lift, bend, push, pull, stand walk, and drive, Noble’s doctor sent him for lab tests and nerve conduction tests. Eventually, he was diagnosed with peripheral neuropathy in his lower extremities which causes severe, constant pain caused by chemical inhalation. Doctors attributed it to his work around volatile chemicals at Thiokol – he entered the workers’ compensation system.
“At first things went along well enough. I was on short term disability; then I went on long term and things started to happen, and yet not happen.” Nobles had received his short term disability benefits for the 6 months and two years of long term disability benefits when Thiokol denied him workers’ compensation benefits alleging that his exposure to their chemicals did not cause his medical problems. Thiokol sent him to their own doctor. Nobles was discouraged.
“After all, I paid for 21 years of insurance and thought they could cover me when I had the back luck to need help. As long as you’re an asset… but became disabled, and they do everything they can to get rid of you.”
He still had a few more years of seeing specialists until Administrative Law Judge Barbara Elicerio, hearing his workers’ compensation case sent him to a Labor Commission Medical Panel in March of 1996 which found exposure to such chemicals can indeed cause peripheral neuropathy such as that of the patient (Nobles).
At this point, plaintiffs seemed to “throw the towel in,” according to Brian D. Kelm, Nobles attorney. Administrative Law Judge Elicerio awarded Nobles a weekly permanent, total disability compensation of $309 from August 28, 1990 to date, continuing for the rest of his life. Medical benefits totaling approximately $35, 000 were ordered to be paid as well as future medical bills. And he received compensation and medical benefits from August 28, 1990 to date, continuing for the rest of Nobles’ life. ALJ Elicerio then sent him to the Department of Rehabilitation Services which concluded the patient’s potential for rehabilitation is dim.
Nobles credits his attorney, Kelm for winning the case and helping him through the evaluations, physical tests, medical reviews, court date changes, and panel of medical doctors. For example, the Department of Rehabilitation took 6 weeks just to get me an appointment. “Brian is an excellent attorney, compassionate, cares about his clients and concerned about my welfare.” Nobles said that Kelm called at times to tell him not to get discouraged. “He took my calls when I knew he was busy, and he told me we would win the case.” Kelm realizes this attribute, because when asked what enabled him to win the case he answered “patience.”
It’s been a long time coming and we’re very pleased to have it this close to being over,” Kelm said. “I know it’s been extraordinarily taxing on the Nobles since they told me many time they on the verge of bankruptcy, of losing their house, their marriage. Chuck’s a fighter though. And thank God for his wife Jane who was stuck by him, believing in his cause, and not let him drop the case and lose the faith.”
An “Occupational Disease” workers’ compensation case involving inhalation of chemicals, according to attorney Brian Kelm, is not a run of the mill case.
“It’s unusual, and that’s probably why the company originally denied the claim. So we have been fighting for two and one-half years. The more time that lapses and the further you get away from the exposure, the harder it is to prove. It becomes easier to defend and to claim other precipitating factors like smoking, heredity, degenerative, and environmental causation. And the times for appeals have lapsed.” Kelm explained: “In cases before the Industrial Commission, if you wait that long, most of the justiciable issues to appeal have long since expired and when the final order comes out, unlike most criminal cases, there is usually not much left to appeal.”
Kelm, after 2 ½ years of work, was awarded by the court $7500, the cap, attorney fees. “But that is not why I took up the case.”
Nobles, although glad to have the case settled says: “No matter what they gave me, it wouldn’t give me back the life I had – hunting, biking, horse-back riding… I have pain 24 hours a day and take a lot of medications. I could have stayed at work, even without a raise and made more than this in seven years. I was a good employee, all my reviews were average or above. Delay seems to be built into the system – to discourage people.”
Ex-Thiokol Worker Awarded $160,000
By Roger Pusey
Desert News staff writer
Thursday P.M / Friday A.M., Nov. 6-7, 1997
Compensation may be largest on record in Utah for occupational disease.
In what is believed the largest occupational disease workers compensation awards on record in Utah, a Utah Labor Commission administrative law judge has awarded a former Thiokol Corp. employee more than $160,000 in wage compensation and medical benefits after a seven-year legal battle.
Administrative law judge Barbara Elicerio also ordered Thiokol and its workers compensation insurance carrier to pay future medical benefits for 54-year-old Charles Nobles, Garland, Box Elder County, She also ordered that Nobles be placed on the payroll of the Employer's Reinsurance Fund effective Aug.25, 1993, and he will receive $309 per week for life.
Nobles was diagnosed as having peripheral neuropathy in his legs, and doctors blamed the condition on volatile chemicals the employees was exposed to after 1969 when he began working as an inspector at Thiokol.
Brain D. Kelm, Nobles’ attorney, said, “It’s been a long time coming, and we’re very pleased to have it this close to being over. I know it’s been extraordinarily taxing on the Nobles since they told me many times they were on the verge of bankruptcy, losing their house and losing their marriage.”
Kelm said his client began to have unexplained symptoms in his knees and legs in 1986. The pain got worse, and he was unable to work after Aug. 28, 1990. He was in severe and constant pain and was restricted in his lifting, bending, pushing, pulling, standing, walking, driving and in his concentration.
Thiokol denied his workers’ compensation benefits, claiming that his exposure to chemicals such as tricholorethylene, toluene, zylene, methyl ethyl ketone and chemlok didn’t cause his medical problems.
A Labor Commission medical panel and administrative law judge ruled otherwise and awarded compensation and medical benefits from Aug. 28, 1990, to the present and continuing for the rest of his life.
Thiokol sent Nobles to a doctor of its choice to prove the chemicals didn’t cause the medical problems. A hearing was held in March 1996 and the case was sent to a medical panel, which agreed with original treating physician’s diagnosis.
The administrative law judge sent Nobles to the Utah Department of Rehabilitation Services and officials there concluded that he couldn’t be rehabilitated. The latest order followed.
Garland Man Wins Claim
By Greg Kratz
Standard-Examiner | Business
Thursday, November 20, 1997
Exposed to chemicals at Thiokol Corp. caused disabling nerve damage
OGDEN – Charles Nobles never stops hurting.
Suffering from never damage known as peripheral neuropathy, the 55-year-old Garland man has trouble with everything from walking to driving.
But while he cannot beat back the pain, Nobles has won one battle. After seven years of trying, he will get the disability benefits he says he has long been denied.
Administration Law Judge Barbara Elicerio ruled earlier this month that Ogden-based Thiokol Crop. and the sate Employers Reinsurance Fund should pay Nobles more than $160,000 now to cover past medical expenses and disability payments he should have received since exposure to chemicals Thiokol caused his health problems.
Elicerio’s ruling says Nobles also will receive benefits of $309 per week until he turns 65. And when full Social Security licks in, he will continue to receive benefits of $154.50 per week.
Nobles said last week that all he wants are the benefits due him, and he is happy with the outcome of his case. But he is not happy about what he had to go through to win it.
The pain begins
Nobles started working at Thiokol in 1969 as a process inspector, monitoring manufacturing of a company that makes rocket propulsion systems. That meant he was working around chemical with names like toluene, xylene and methyl ethyl ketone.
“We didn’t actually use (the chemicals), but we were always right there when they were being used,” Noble said.
Nobles worked his way up the ladder and eventually became process inspection foreman.
Then in 1986, he started feeling pain in his knees. The pain eventually spread to his calves and thighs, and he thought it was caused by arthritis.
Nobles said he went to many doctors, but they could not find the cause of the problem. Finally, early 1990, a neurologist told Nobles that he had a nerve damage that may have been caused by exposure to chemicals.
“(Peripheral neuropathy) is basically just damage to the central nervous system,” Nobles said. “In my case, it has settled into my legs.”
“I’m in pain 24 hours a day. I’m on a lot of medication. I’m on sleeping pills, and I still only get four to six hours of sleep a night… Take everything that you really enjoy doing, and you can’t do it anymore. And everything you do, you’re doing in pain.”
Thiokol moved Nobles away from the chemicals, into a quality engineering job.
Nobles said he worked there for six months, but by August 28, 1990, he was in so much pain that he could not do the job. He left work on short-term disability, which progresses into long-term disability.
Then, Nobles said, Thiokol denied his works’ compensation benefits, claiming that his exposure to chemicals had not caused his medical problems.
A long road
That’s when Nobles started fighting for the benefits, In May 1995, he hires Salt Lake City attorney Brian D. Kelm to help when his case was taken before what was then called the state Industrial Commission and is now Utah Labor Commission.
After a hearing on the matter in March 1996, the judge sent Nobles’ case to a medical panel. That panel ran tests and eventually agreed that exposure to chemicals such as those used at Thiokol could have caused Nobles’ condition.
Next, the case went to the state’s division of rehabilitation services, which ran tests to see if Nobles could still work.
Months kept slipping by, and only after the panel determined that he could not work did the judge rule that Nobles should receive benefits for life.
To get by during the wait, Nobles’ wife went to work, and they pulled money out of their savings.
“(The system) works. It just takes too long.” He said. “I paid for long-term disability insurance for 21 years, and when you need it, they don’t let you have it for as long as you need it.”
“I had a wonderful job with great benefits, and if I could, I’d still be out there. I planned on retiring there.”
Now Nobles will depend on the benefits he received under the judge’s ruling. It says Thiokol must pay Nobles’ past medical expenses and give Nobles a lump sum equal to permanent total disability benefits at a rate of $309 per week for the first 156 weeks of his disability.
The state-run reinsurance fund, which was established by the Legislature in 1988 and is supported by a percentage of workers’ compensation premiums of the state’s employers, will take over the payments for the period starting Aug 25, 1993.
A Thiokol spokesman said it is company policy not to comment on litigation. And Thiokol’s attorney in the matter, Michael Dyer of Salt Lake City, said the company has not yet decided whether it will appeal the ruling.
Joyce Sewell, reinsurance fund administrator, said the fund currently pays benefits totaling $23 million to $24 million each year to about 1,650 people. Nobles’ case is not unique for the length of time it took to resolve or for the benefits he will receive, Sewell said, but it was difficult because of the issues involved.
“Exposure cases are unusual,” she said. “They’re just more difficult to adjudicate and really determine if it’s related to the work.”
Nobles said he does not hold any ill-will towards Thiokol, which he said has quit using one of the chemicals to which he was exposed and has improved its safety procedures.
“We did what the manufacturers told us to do and what Thiokol safety regulations told us to do. But in my case they weren’t adequate, “Nobles said.
“I’ve got to look at all of this for the long-term. All the doctors I’m seeing say there’s no cure and nothing they can do. It’s just, take the pain medication and live with it. I’m looking at that for the rest of my life”
Trucker Wins Large Claim After Six-Year Battle
The Intermountain Commercial Record & The Salt Lake Times
Volume 40 | Number 33
Friday, August 8, 1997
Salt Lake City, Utah
Also revered on ground that ‘Social Security listing’ defense was inappropriate
In one of Utah’s largest workers’ compensation cases, a Wellsville trucker will receive over $150,000.00 in compensation and medical benefits and $321.00 per week for life. On October 31, 1990, Danny Kleinsmith was climbing out of the cab of his semi-truck, but lost his grip and fell backwards onto the pavement injuring his back and neck, and subsequent surgery, left the then 59 year old long haul trucker permanently, totally disabled. Allied Van Lines denied his claim alleging that he was an “independent contractor” and therefore liable for his own disability insurance. However, finding that Allied made him paint his truck orange, wear an Allied uniform, controlled his whereabouts, routes, and whether he could haul for anyone else, the Utah Industrial Commission clearly concluded that Mr. Kleinsmith was an Allied employee and entitled to benefits under their workers’ compensation plan.
“This was an especially sweet victory because when I first approached Allied headquarters in
Chicago and pleaded with them to help this man, they basically said, “Take a hike, he was an independent contractor, he’s on his own. We’ve fought this same battle all over the country and never lost,” stated Kleinsmith’s attorney, Brian Kelm. The battle has been long and had fought with appeals back and forth for the last six years. The last opportunity to appeal just expired making the Industrial Commission’s January 16, 1997, order final. Kleinsmith’s 1991 neck surgery and other outstanding medical bills totaling over $20,000.00 will be paid, as well as $321.00 per week from October 31, 1990, to date, with interest, and continuing for the rest of his life.
Another significant victory for workers in Utah was a finding by the Industrial Commission on “medical causation”. In order to succeed in getting permanent, total disability benefits from a workers’ compensation carrier, an injured worker must prove that the disability was medically caused by the work accident. In this case, Kleinsmith was awarded Social Security disability benefits based on a heart condition. The Industrial Commission adopted the findings of Social Security, as they were bound by law to do, and initially denied Kleinsmith benefits stating that the medical cause of his inability to work was his heart condition, not the industrially related neck problems.
On appeal, an Industrial Commission impartial medical panel concluded otherwise, stating that “the event of October 31, 1990, appears to have been the event that changed him from a person who could continue working to a one who couldn’t” and that the heart problem was not debilitating in and of itself. “This is an important ruling for injured workers who get Social Security based upon a non-industrial medical problem, which happens to satisfy a Social Security “Listing,” but are actually barred from returning to work due to an industrial injury. Listings are convenient categories for Social Security to award benefits on, but do not necessarily paint the whole picture on why an individual cannot work,” stated Kelm.
Trucker Wins 7-Year-Old Workers' Comp Case
By Lisa Carricaouru
The Salt Lake Tribune
Wednesday, July 30, 1997
Allied Van Lines' Insurers Must Pay Him $150,000
“This was an especially sweet victory because when I first approached Allied headquarters in Chicago and pleaded with them to help this man; they basically told me to talk a hike." - Brian Kelm (Truck driver's attorney)
Insurers for Allied Van Lines have been ordered to pay a Wellsville truck driver more than $150,000 in compensation and medical benefits for a neck injury suffered on the job nearly seven years ago.
The payment ordered earlier this month by Utah Labor Commission Administration Law Judge Benjamin Sims is one of the state’s largest worker’s compensation awards, said Brian Kelm, a Salt Lake City attorney representing truck driver Danny Kleinsmith.
After a series of appeals on both sides, Sims ordered Allied insurers United Insurance and Employers’ Reinsurance Fund to pay Kleinsmith workers’ compensation of $125,000 and medical benefits exceeding $25,000, Kelm said. He also will receive weekly benefits of $321 and payment of future medical bills.
“This was an especially sweet victory because when I first approached Allied headquarters in Chicago and pleaded with them to help this man; they basically told me to talk a hike." Kelm said.
Kleinsmith was injured in a fall from a truck while working for Allied Van Lines on Oct. 31, 1990. Kelm said his client suffered a herniated disc in his neck that required surgery and left him permanently disabled.
Allied denied Kleinsmith’s worker’s compensation claim, saying he was an independent contractor and therefore did not qualify for the benefit. The company also alleged Kleinsmith was disabled due to a heart condition rather than the on-the-job injury. It based the allegation on a Social Security finding awarding Kleinsmith disability for the heart condition.
But Kelm contested and the Labor Commission eventually agreed that Kleinsmith was an Allied employee entitled to workers’ compensation benefits because he had been required to paint his truck orange, wear an Allied uniform and get approval to haul loads for anyone else.
The Commission also agreed Kleinsmith’s on-the-job neck injury and not his heart condition is what kept him from working and qualified him for workers’ compensation benefits.
Stuart Poelman, an attorney for Allied and United Insurance, said the case went through a series of appeals because “we thought we could persuade the Commission to see our side,” he said.
For his part, Kleinsmith is just happy the dispute is over.
Solo and Small Firm Attorneys Seek Support of Legal Community
By Donna K. W. Johnson
The Intermountain Commercial Record & The Salt Lake Times
Volume 39 | Number 41
Friday, October 4, 1996
Salt Lake City, Utah
Brian Kelm, concentrates his practice in disability and workers’ comp law for plaintiffs, and has practice experience for nice years.
Kelm says his attitude is sort of wishy-washy. “A couple of years ago, I would have agreed with Brian (Barnard,) but they have taken some major strides in the past couple of years. The majority of their names are still aimed at the elite, though. I usually get one or two useful titbits out of the Bar Journal, but seldom, more than that. Mostly I look for the list of attorneys disciplined and thank the Lord my name’s not in there.”
All three attorneys are concerned with educating new practitioners in law office management – and none of them feel law schools in the state are doing enough about it. Kelm and Barnard are working on a committee to address this problem – “but law schools, for some reason, averse to teaching it,” Kelm adds. “And there is a pressing need. It was frightening when we first started; there was nothing out there and we were flying by the seat of our pants. The fact is, running a law office is running a business; and if you lose sight of that, your business is going to go under.”
Kelm demurs: “I don’t see the Bar getting even half to join here in a case like that. But the dues should be less; $350 to $450 is a hard hit. In a utopian world, dues would be based on income or solos and smalls would pay less than large firms; but that’s not practical.”
Kelm says he likes the idea of Client Security Fund to reimburse people who have been financially by unscrupulous or insufficiently educated attorneys – “although I think it would be hard to get money from other attorneys for clients.”
Bush, Barnard, and Kelm agree that mentoring and networking are invaluable for solo or small practitioner; but they can be hard to come by. Kelm notes, “my mentor saved me a lot of grief in my early years of practice.”
When solo practitioners talk of the problems of competing with large firms, most say the contest is inherently unequal: “The way a big firm gets penalized for doing something wrong is that they lose the client,” Kelm says, “while we get a claim filed against us.”
Even with good office management skills, doing business is still harder for small practitioner, Kelm says. “After all, you know Kennecott’s going to pay their bill. We get hired by small business or individuals, and it’s just harder to get paid. What makes it worse is that the attorney don’t do collections.”
Kelm says he might like to head a large firm for the financial benefits: “My perception is, in a case like that, you’re making money off other people’s time. You can make as much in solo practice as much as you would in a large firm, though it’s not likely; all it takes is one monster case. As of now, however, if I’m not working, I’m not getting paid. But do I want to pay the dues to get to the pinnacle? Probably not; I’ll keep doing what I’m doing. I have the freedom to decide whether to charge my client a penny, a dollar or a thousand dollars, and I think I’m more apt to cut my rate than a big firm would be if a client can’t afford to pay so much.” Kelm is not alone in cutting impoverished clients some financial slack: A recent survey in New York State indicated that the highest percentage of pro bono work was done by solo and small practitioners.
Kelm sums up the reward of solo and small practitioners: “I originally got into my practice partly by default, partly for fun and to help less fortunate people. Looking back, I’m glad I did. I am infinitely proud to do what I do for people, and to call myself an attorney.”
Disabled Man Says State's Discrimination Resulted in His Failure to Certify as EMT
By Sheila R McCann
The Salt Lake Tribune
Tuesday, July 23, 1996
A partially disabled Moab man sued the Utah Department of Health Monday, alleging the state “went out of its way to ensure” that he failed an emergency medical technician examination.
Tim Angus, 39, claims employees of the Bureau of Emergency Medical Services violated his rights under the Americans with Disabilities Act (ADA) during testing earlier this year. Agnus, who uses a wheelchair, claims he faced more rigorous performance requirements than his able-bodied classmates.
In a short statement, the bureau said Angus was tested “in the same manner” as other applicants and failed the test twice. The reason for Angus’ failure cannot be disclosed because test results are kept confidential said Health Department spokesman Ross Martin.
Angus has been an “incomplete paraplegic” since he was injured in a car accident in 1977 while he was serving in the U.S Army. He uses a wheelchair for comfort but is able to stand or move down to the ground quickly with crutches, canes or braces, said his attorney, Brian D. Kelm.
The lawsuit says that Angus owns a river-rafting business in Moab and is a certified Red Cross instructor for various first-aid training courses. He is also a Guide I river guide, the highest level of river guiding training recognized by the state Department of Parks and Recreation, his attorney said.
After requiring his rafting employees to be certified emergency medical technicians (EMTs), Angus decided to apply the same criteria to himself. He enrolled in a University of Utah EMT course during the winter quarter of 1996.
University officials were “kind of concerned” about Angus’ abilities at first, “but those (worries) were put to bed very easily when they found out he was such a leader in the class,” Kelm said.
Angus passed the university instruction with “flying colors,” his attorney said. But during testing for certification by state examiners, the lawsuit alleges, Angus was places under “extraordinary scrutiny” and was failed on “technicalities.”
During retesting in May, he was again closely watched by bureau officials and his performance was tape-recorded, unlike other students, the suit said. Angus received a failing score again.
“I believe I passed. I believe I blew their doors off,” he said Monday. “This is just overt discrimination.”
He points to supportive letters from friends and instructors, who praise him as skilled and capable.
Angus’ lawsuit, filed in U.S. District Court, alleges his “disparate” treatment stemmed from discrimination a violation of the ADA and the federal Rehabilitation Act of 1973. He asks for his certification and an apology. He also seeks money damages for his emotional distress and prohibition against future discrimination.
Suit Accuses Eatery of Discrimination
By Vince Horluchi
The Salt Lake Tribune
Sunday, March 19, 1995
Women Say They Were Fired For Being Pregnant
In September 1992, Linda Tolman was awarded the most helpful waitress title at Chilli’s Southwest Grill at 1070 E. Fort Union Blvd.
The next day she was fired.
That year, at least five women at the restaurant in the Family Center were either fired or, they say, forced to quit.
The women shared one thing in common: All were pregnant at the time.
Three of the women, Tolman, Windi Marsh and Sharon Sorensen filed a civil lawsuit in December against the restaurant and its parent corporation, Snowstate Restaurant Corp., claiming they were discriminated against because they were pregnant.
“It’s unfortunate when a group of pregnant women who are doing their job can’t continue to do so without the fear of being fired,” said their attorney, Brian Kelm.
“There is an image at Chilli’s of the young, bouncing, bubbly, blonde image,” he added. “These women (the plaintiffs) were not of that image because they were ‘fat.’ “
Sorenson was about five months pregnant when she started to get harassed by the restaurant’ managers, she said.
“I was so afraid to go to work to take the harassment and the abuse,” the 34-year-old West Jordan woman said. “Every time I walked into the door, I always heard from the managers, ‘You are huge!’ “
Sorenson also claims the managers forced her to do work dangerous to her condition and told her she was too unattractive to work certain days. She also was told she had to wear skirts that were four inches above her knees.
“We were bringing a life into this world, and we were made to feel ugly,” she said. “I was going to have a baby. They should have been happy for me.”
Sorenson said the harassment became so tense that she went into prelabor about six months into her pregnancy. She later quit.
“It was terrible. It was a total nightmare,” she said.
The three women contend they were fired or forced to quit just after a new district manager and several other managers – all men – took over the store in August 1992.
Tolman said she worked with the new manager just one day when she was fired.
“I put everything into that job. It was a slap in the face to all of us.” she said.
The restaurant, however, contends the women were insubordinate and were not doing their job.
In a response to the lawsuit, attorneys for Snowstate said the firings were “in good faith and based on reasonable grounds… and without malice or reckless indifference.” The defendants called the charge “frivolous, unreasonable and groundless,” according to the court document.
Attorneys for the defendant were unavailable for comment on Saturday.
The three filed a complaint with the Utah Anti-Discrimination Division of the Industrial Commission. After nearly two years, the agency ruled in favor of the restaurant.
Last December, the trio filed the lawsuit in a state court, but the case was bumped up to the U.S. District Court on request of the defendants. The other women who alleged the same abuse were not able to join the case because they did not make the deadline for filing, Kelm said.
The plaintiffs are asking for attorney’s fees and damages to be determined at trail. Kelm said no hearings have yet to be scheduled in the case.
Settlements last longer if invested wisely
By Donna K.W. Johnson
The Intermountain Commercial Record & Salt Lake Times
Salt Lake city, Utah
Labor Commission / Workers' Compensation
“As I do with every client who accepts a cash payment, I sent this worker a closing letter with the names of two excellent money managers I’ve dealt with in the past,” - Brian D. Kelm
Brain D. Kelm recently hammered out a workers’ compensation settlement for a disabled employee with the help of Utah Labor Commission mediator Pete Groesbeck. The award is the largest mediated settlement ever reached at the Labor Commission, Kelm said.
“My client injured his low back while lifting a heavy hydraulic ram at work,” Kelm said. “He said he was unable to return to any kind of substantial gainful employment after the incident. His employers, South Valley Water Reclamation, disputed this claim and contended that he was able return to work. He also had several other pre-existing problems that might have worsened his situation.”
Kelm said the worker never received an impairment rating from any physician, and the case was never referred to a medical panel, as Utah law requires when doctors disagree over the extent of an injured worker’s disability. “My client has quite a few restrictions on the time he can spend standing, sitting and lying down,” Kelm added, “and he also has severe lifting restrictions. His prospects for rehabilitation are pretty grim, since he’s fifty-five years old and has never done any other kind of work in his whole life. Putting it bluntly, the employer and its workers’ comp insurance carrier would rather spend their money to rehabilitate someone who’s twenty-five and has a lot of good working years ahead of him, not someone who’s this close to retirement.
Kelm said the case never went as far as a hearing before the Labor Commission, since the Commission urges disputants to try mediation before a hearing is scheduled. “We sat down together with the mediator and the defense,” he explained, “and each side summarized its position in a statement lasting five minutes or so, rather like the opening statement in a courtroom. Then we separated, and the mediator bounced back and forth, conducting what he calls ‘caucuses,’ until we reached an agreement.
The employer and its workers’ comp insurer had previously paid the employee $3,500 in medical expenses and $15,000 in temporary total disability compensation. “They were dismayed by the prospect of having to pay him benefits for the rest of his life, especially when they figured out that the rate would have been $379 per week for all that time,” Kelm said. “So they made him an offer of a lump sum payment of $87,500, plus continuing payment of related medical expenses for as long as he needs treatment, and he accepted.”
Kelm said the lump sum award can last a lifetime if the money is properly managed,” As I do with every client who accepts a cash payment, I sent this worker a closing letter with the names of two excellent money managers I‘ve dealt with in the past,” he noted. “I know clients often call them after receiving my letters, because the money managers call me from time to time thanking me for the referrals. If this client contacts them, they will help him make the money last the rest of his life. I lean on clients pretty hard to get them to do that instead of buying a Cadillac or taking a cruise to the Bahamas, and most of them do invest wisely.”
Recovery From Brain Injury is Difficult for Attorney as well as Patient
By Donna K.W. Johnson
The Intermountain Commercial Record & Salt Lake Times
Salt Lake City, Utah
We work with attorneys who represent brain injury clients like Brian Kelm, who do a lot of Worker’s Comp brain injury cases.
“Frankly, it still seems like an extraordinary uphill struggle to convince a workers’ comp carrier your client has sustained a brain injury, particularly a closed head injury,” mourns sole practitioner Brian Kelm, who focuses his practice largely on workers’ comp and Social Security cases.
“The difficulty in the workers’ comp realm,” Kelm continues, “is that you are significantly bound by the strictures of the workers’ comp insurance carrier. They are directing the care of the injured worker, and you have as much latitude in making suggestions on treatment or diagnostic procedures as you would in a personal injury case. You can’t send the person out for neuropsychological testing and say, ‘Come back in six months.’ Most treating physicians and adjusters just won’t buy it.”
Kelm says under workers’ comp law a claimant can only change doctors once. “However you can be referred to any number of other providers, and as long as the referral is from a physician, the Workers’ Comp Fund will pay, if the referral and treatment are reasonable,” he adds. “As an attorney, I can’t work directly with a physician in a workers’ comp case as I can in a personal injury case. In a personal injury case the physician is more apt to be receptive to any input and suggestions. In a workers’ comp case you’ve got the adjuster taking a more pre-active position and it’s just harder to work cooperatively with the treating physician.”
The upshot of all this, Kelm says, is that the new technology hasn’t begun to tackle down for use in diagnosing work related injuries. And even if the best diagnostics were available, the injured workers’ financial prospects are still not good: “The prognosis is extremely grim for any serious brain injury cases, but even more so in the workers’ comp arena. For starters, if you prove your case, you get only two-third of your average weekly wage. Then you must convince your doctor and insurance adjuster that you have ongoing permanent, partial or total impairment. That’s especially difficult when there’s often no objective physical evidence. After all that, even if the doctors rate your ongoing impairment at five or ten percent, in money terms you’re still only talking about a couple of thousand dollars. Say the carrier pays up: then you’re on your own, without access to vocational rehabilitation or other retraining.”
Kelm said proving disability to the Social Security Administration is similar but not as demanding. “That’s because the system is designed to be non-adversarial,” he explains. “It’s just you and your lawyer and a judge, instead of you, you lawyer, the administrative law judge, and the adjuster or the opposing attorney.”
Kelm says he often refers his clients to the Brain Injury Association. “They help very much,” he adds. “You can’t really appreciate how different brain injuries are from other injuries, or the impact they have on people’s lives, until it happens to you. And those folks understand what it’s like.”
Articles on Brian Kelm's Passion and Achievements
The articles describe Brian D. Kelm's passion for music and cycling, some of them written by the attorney himself. Read to learn more about his achievements.
Rhythm & Blues Rendezvous
By Kolbie Stonehocker
City Weekly | Live
Saturday, July 20, 2013
This Week's Music Picks
lf you're a fan of blues programming on 90.9 FM KRCL - like DJ Brian Kelm’s show Red, White & Blues - head to Rockport State Park (45 miles east of Salt Lake City) for the fifth-annual Rhythm & Blues Rendezvous. The proceeds from the all-day outdoor event will go to the radio station to help keep blues on the local airwaves. The funk/blues / soulcentric lineup includes Rendezvous newcomers The Neighbors, River House Band, Tony Holiday Band and The Soulistics, as well as veterans Harry Lee & the Back Alley Blues Band, George T. Gregory Band, Blues on First and Ides of Soul. The music kicks off at 1 p.m. and doesn't let up until 10, so get a drink in your hand and make with the dancing, all for a worthy cause. One important reminder: While the event has typically been B.Y.O.B., this year, food, drinks and beer will all be available on-site, and coolers won’t be allowed. Rockport State Park, below the Rockport Reservoir Dam, 9040 N. State Highway 302, Peoa, 1 p.m., $10 admission / donation.
U. Bike Enthusiasts Complete 10th Annual Trek
By Allan Rubenstein
Chronicle Feature Writer
The Daily Utah Chronicle
Wednesday, April 29, 1992
It is a journey into the unknown. It is an exploration of nature’s most majestic creations. It is a test of physical endurance and conditioning.
Welcome to southern Utah, where all of these aspects are rolled into one-one enjoyable adventure that University of Utah students claim was the best experience they have ever received in the “Land of the Red Rocks.”
Last weekend, April 23-26, a group of avid U. cyclists packed up their cars and headed for Zion National Park. The trip was a three-day, two-credit outdoor adventure provided through the recreation and leisure department.
The class consisted of a 50-mile bike ride on Saturday and a 20-mile bike ride, combined with a four-mile hike, on Sunday. The students cycled throughout the park and finished the weekend by hiking to the top of Angel’s Landing.
The class’ uniqueness spanned into many different aspects. It is one of the few cycling classes at the U. that is specifically for paved-road touring. There was no off-road cycling or trail riding.
People can get more into nature on this ride. Brian Aldrich said, “You are not looking at the park through car windows. On a bike you are one to one.”
Created in 1982, the class is offered during spring and autumn quarters and proudly boasted its 10-year anniversary. Repeat students declared the slogan for this year, “A Decade of Decadence.”
Todd Schilling, a seven-time veteran of the class, said the class is a great way to get away from the studies and stress of school.
The mastermind behind the 10 years of biking and camping success is avid cyclist Brian kelm. Emphasizing the beauty of the Southern Utah environment, Kelm has had great success with his students and their safety.
“ I want people to feel they are challenged on this trip and that they learn something about cycling and camping skills, “Kelm said, “ I want people to appreciate what’s becoming a very urbanized and commercialized national park. However, it is still the premier place to ride a bike,”
Kelm has a remarkable personal history. In 1981 he was hit by a motorist while walking across 1300 East and 500 South. He was crippled for an entire year. He began cycling to rehabilitate his legs and has been hooked over since.
Shortly after his recovery, Kelm cycled for four months in Europe. In 1984 he set a world’s record by cycling 404.5 miles around Liberty Park in 24 hours.
“Stoney. Brian is really cool and is the reason the trip goes so well,” Schilling said, “This is also where I get my poetic inspiration.”
Kelm uses an original style of cooperative camping to keep the students together. All of the students cook and eat together at the campsite. In fact, Kelm uses the assistance of his students to do the all of the food shopping before the trip.
Kim Snow, a cyclist in the class, said the class is a great way to get to know other students.
“You can take a class on campus with 90 other people and maybe know two people by their first names. On this trip, you come home knowing 20 different people.” Snow said.
“I go on the trip because Todd [Schilling] drags me along,” said Tree Wangsgaard, one of the class veterans.
“The class is fun to take some friends on the trip and then make some new ones,” Wangsgaard added.
Ryan Stout, who had taken the trip twice before, said Kelm told him this trip was going to be great and decided he had to come.
Kelm’s success with his students and class is attributed to his diligence in preparation and perfection. He thoroughly goes over every aspect of the rides and the camping each year.
“I hope to continue providing students with a quality camping and biking experience,” Kelm said. “I’ll keep doing this until I’m in a wheelchair.”
Every year Kelm surprises his new students by capping off the 50-mile bike ride with a freshly cooked salmon dinner. The students are then taken to a nearby hot spring to relax and enjoy the rest of the evening. The evening is finished with s’mores by the fire.
“The trip was a total blast,” Aldrich said, “Everyone got along well and had a very positive attitude.”
“This trip was exactly what I needed,” Snow said. “It was great to get out of Salt Lake City for a weekend.”
“It was a hard ride, but I felt good about it afterwards. Everyone got along well because of Brian (Kelm), “Stout said.
Kelm said he hopes to be doing this trip until he can no longer keep up with his students. “I only hope that the standards of the park allow a long healthy future for the environment”.
Bicycling in Europe
By Brian Kelm
Salt Lake Tribune | Solo
June 24, 1984
I had written to every tourist office, read every book and talked to everyone I knew who could enlighten me on Western Europe. After all, I was an under-financed student planning my first, and perhaps only, bicycle tour of a place I’d heard cyclists eulogize. And I was going to do it right.
While I do feel I went prepared, there are certain aspects of undertaking a bicycle tour of Europe that I wish someone could have forewarned me about.
Much of what I’d read was too literary and abstract. Tour routes were mapped out in exquisite detail. Jean LaFoote’s Roadside Café just behind the post office cannot be missed for its fresh croissants and be sure to stay at… Well, as much as I’d have liked to, I couldn’t remember any of these “must see” places and I wasn’t about to alter my plans to search for them.
Additionally, as cyclists know, you tend to be under some restraints of the weather and to go where the wind blows (hopefully behind you).
I wanted some concrete, practical information that would aid in the preparation and duration of a European cycling adventure from a cyclist’s perspective. Thus, I am writing this in light of what I wish I could have read before I left.
If you are contemplating a bicycle tour in Europe, don’t ponder, proceed! Europe is a cyclist’s haven. The scenery and history speaks for itself. Nowhere else can you self-propel yourself through several different climates, cultures and countries in the same day.
And Tour de France marathon conditioning needn’t be a prerequisite. Because of their proximity and size anyone in reasonably good condition can undertake a multi-country tour. Signs are posted clearly throughout Europe and distances are, of course, in kilometers. It sounds better to say you did 100 kilometers rather than 63 miles, doesn’t it?
The generally temperate climate is akin to that of the Midwest, with the ideal cycling season being late May to early September. The closer to these outer boundaries the better, as there will be less tourists.
Throughout my June to September tour last year, all Europeans attested that it was the sunniest, mildest summer they could ever recall. Aside from occasional night time showers, I had five rainy days out of 100. I’d plan on being prepared for a little more precipitation when you go, however.
Another plus for cyclists is European drivers’ extreme consideration for bicyclers. They drive in the ongoing traffic lane when overtaking you. They will not blast their horns to indicate you are infringing on their roadway, as some Americans do. They will not butt against you on a narrow road but will wait for you to let them pass.
Perhaps this is due to the fact once they park their car, they consider themselves cyclists as well. Whether it be a guy in his 60's with iron legs and a custom bike who can hammer you into the ground or an 80-year-old lady returning from the market with bags of fresh fruits and vegetables loaded into the handlebar basket.
Their awareness of cyclists is so keen that I, Mr. “Never leave home without it (helmet),” left it in storage after a week. While motorcyclists are required to wear head protection, helmets for cyclists are a novelty and are good for a few snickers and giggles. If you spot a rider donning a helmet, you can count on it being a fellow American.
The model for campground systems has got to be Europe. There’s no need for a campground map or to plan your itinerary around what camps you should reach. Thousands of tidy campgrounds dot all the Western European countries in all but the tiniest of villages. Virtually all sites have restrooms with potable water and free cold showers (tokens, at a small fee, allow for hot water).
In bigger cities other amenities may include a launderette, general store, snack bar, gameroom, etc. Every few days at camp, I’d also break open my small bottle of Woolite and wash a change of clothing in the restroom sink. Barring heavy dew, the items hanging on my bike or a nearby fence, would be dry by morning.
I strongly recommend avoiding “big city” campgrounds. The bulk of the “classic” tourist is found here. Eurail trekkers restricted in their mode of travel get off in big cities and camp here as well. At these patrolled grounds one is often forced to set up a tent (which is always required) an arm’s length away from another. Cockroaches, loud music and screaming kids abound. The $1- $3 fee is double or triple the cost of countryside campgrounds.
Take advantage of your extreme mobility and get out into the country! At such sites, I often found myself alone or with a few neighborly campers which only the countryside attracts. Facilities are more than adequate at these clean, spacious and scenic sites. Many times there wasn’t even a caretaker to collect the nominal fee and require me to sleep in a tent.
With such an exquisite network of campgrounds, combined with admirable weather and my preference for sleeping under the stars, I never once used my International Youth Hostel Card, so I’m not qualified to comment on this particular choice of cyclists’ accommodations. It is unquestionably a splendid place to meet fellow youth from across the globe and can provide a welcome roof over waterlogged, weary bones. Most include breakfast too. Hostels aren’t as prevalent as campgrounds, however and you will find a hostel map a necessity. You must be a member (any age qualifies) to stay in the hostels, so get your card here before you leave. For the less out-doorsy-type traveler, hostelling may very well be the way to go.
After some trial and error, I figured out a daily strategy I recommend to all cyclists. Most tourists, upon looking at a map, would plan on going from point A (Bern, for instance) to point B (Basel). With my ultimate two-wheeled mobility, I began travelling from point A1/2 to point B1/2, just the opposite of everyone else. I bedded down in the countryside for solitude as mentioned, and sometimes around mid-day would arrive at the bigger cities where I could choose to browse the street markets, take in some culture at museums or simply people-watch during this animated time of the day. I’d then head out of town before rush hour to an enchanting small town somewhere down the road.
Do consider the much sought after two-hour European lunch most businesses take from noon until 2 p.m. In this instance, closing time is 6:30 p.m., excepting banks- 4:30 p.m.
Perhaps one of your most crucial considerations in planning your trip is who, if anyone, to tour with. There are various advantages and disadvantages to supporting a solo flight versus companions. I attribute much of my cultural fulfillment to riding alone. People are always less apprehensive and less threatened by a sole voyager than a caravan. Under no circumstances would I have been taken in as many European homes as I did, had I been in a group. In addition, if you feel like further relishing a most quaint village, who’s to argue with you. And if you feel spunky and want to ride 200 kilometers, go for it. You’re guided by your own whims.
If you would like some company, linking up with any number of cyclists from around the world for a few hours or a few days, is common place. You’ll have no problem meeting people.
On the other hand, a minor hindrance facing the lone cyclist is taking pictures, with yourself in them. A camera with a timer comes in handy here. I can always tell the pictures I had tourists take of me. I am either down in the far left lower corner or out of focus.
If you aren’t the independent type, you can discriminately choose a touring partner or two. The constant companionship is invaluable to some and the conversation factor can indeed be beneficial during the long, hard headwind days. To lighten the load, tools and other gear can be divided equally among the riders. It’s also nice to have others share in the unforgettable experiences awaiting you.
You can cover as many as miles as your heart desires right outside your back door. Don’t go to Europe for mileage and come back saying they have nice roads. Come back saying they have nice people. Bring home a few of those truly significant and meaningful tour souvenirs that don’t weigh you down- lasting friendships. And remember, the joy of touring is found along the way, not at the end of the road.
Biker Pedals Day and Night
The Salt Lake Tribune
Saturday, June 30, 1984
Despite 102 degree weather, shifting winds and pesky dogs, Salt Lake resident Brain Kelm, 22, cycled 24 hours around Liberty Park to accumulate a 404 mile record Thursday and Friday.
Kelm, 1870 Sunnyside Ave., started his ride Friday morning at 8:09 a.m. with the intent to break the standing record of 393 miles set by Jay Aldous, Salt Lake, last fall.
He said he took breaks during the heat of the day Thursday to get water then rode for 12 straight hours from 7:30 p.m. until he finished early Friday morning.
“I did it mostly for myself,” Kelm said.
Oh, My Aching Legs
Friday, June 29, 1984
Brain Kelm, 22, claimed a world’s record Friday after cycling 404.5 miles around Liberty Park between 8:09 a.m. Thursday and 8:09 a.m. Friday. Kelm, 1870 Sunnyside Ave., cycled about 290 laps around the 1.4 mile park road to break the old record of 393 miles in 24 hours. “The heat was the roughest part, “he said, and he also had to contend with people, dogs and cars. He was bolstered by friends with a cooler of snacks and liquids. Kelm trained by riding 100 miles a day for the past month. “I also ride every day because I don’t have a car, and I teach bicycling at the university.” He may try to get in the Guinness Book of World Records, but mostly, “I just wanted to do this for myself.”
Taj Mahal Takes Charge
By Brian Kelm
Canyon Times | Music
Pg 18 | February 3, 1983
Yet more top notch musical entertainment was to be found in January at the Pork City Cowboy Bar. On Tuesday, January 18, the stage was set for the powerhouse folk / blues of Taj Mahal. Two well-paced shows were given to near capacity audiences. Between shows, Mahal commented on his 22 years in the music business and the record industry in general.
“It's been about seven years since I've left Columbia Records. I make more money now that I don’t have a record company and all this other BS going on. I play my shows, people come to see them, and they have a good time. They come back the next time and bring their friend- which is a lot more fun. We spent 1965 to 1970 trying to make hit records and, God, they (record companies) wouldn't listen to us, so we fought our way through that.”
“Then I left it all in 1970. I said, ‘you know, I'm not going to waste my time like that anymore.’ Here's what I really believe in. I play this stuff and people like it, so why am I trying to sound like this guy or that guy?"
Mahal saw a lot of manipulation in the record industry. With 16 albums under his belt and performances to sold-out crowds across the world to his credit, Mahal decided that he no longer needed a record company on his back.
"You can't stay alive in this business without having same kind of intelligence beyond your basic life energy level. You've got to move up in the levels or you get left behind or you just get used- you're just a pawn in the game.”
"Part of the problem was that they (the record industry) like ignorant blacks that they can give a Cadillac, a couple blondes and some coke to and he'll be happy. Now you be intelligent with those cats and they don't know what to do with you and they don't want to admit it. The other problem was breaking black music into the overall market."
The acceptance and popularity (if you can call it that) of blues music is indebted to the British rock music movement of the '60s and early ‘70s. As Eric Clapton, The Beatles, and The Stones
climbed the charts, they made frequent reference to Muddy Waters, B.B. King and other great American bluesmen who had affected their style immensely. People began to dig deep to check out just who had ignited their favorite superstar's skyrocket to fame.
Mahal speaks of the '60s when, "My band was playing around California and had a reputation. We had two albums out. Eric Clapton's group opened for us, playing essentially the same kind of music. During all those years of Clapton, Beck and so on, they all came to see me and Albert King and Albert Collins and they still do. Americans haven't figured out that it (the blues) is a national treasure- one or our true traditional forms.
"Right now, a lot of music I like is becoming popular again because there's a group of kids that never heard it before. That's what happened to the blues. There was a whole group of people in the '60s that never heard it right up close before."
The biggest problem Taj Mahal records had encountered is in distribution. "I come to town and everybody runs out to the record shop. M...M-A...M-A-H.... NO TAJ MAHAL! Then the owner says, ‘Well, we can have it for you in four weeks, but we have same Pink Floyd over here.' "Indeed, a trip to a reputable local record shop produced only three of his 16 lps.
Throughout the years, Mahal has toured as everything from a six piece band to a solo performer. If you caught Mahal's solo gig last winter, you need not fret if you missed this year's. The repertoire does not vary considerably from year to year. As Taj Mahal said, he can play Spoonful, Robert Johnson's standard Dust My Broom, Cakewalk and his own biggest hit Corrina (as he did): the crowds will love it and keep coming back for more. He ended each show with four or five song set of piano boogies.
It is unfortunate, though, that he does not draw more extensively from his vast amount of arterial.
Taj Mahal has broken the restrictive chains bonding many musicians and has taken charge of his musical direction. Mahal says the industry dubs him as “a has-been that should've happen a long time ago and they don't understand why not." However, according to Mahal, he is "happening" right now and doesn't need the industry to do it. He is better off financially, mentally and musically. It shows in his decisive playing.
Roomful Sings The Blues
By Brian Kelm
Canyon Times | Music
Pg 14 | November 12, 1982
Performance and Album are Hot Numbers
PHENOMENAL, BRILLIANT, AUTHENTIC. Adjectives cannot properly describe the Roomful of Blues
experience. Friday and Saturday (Oct.22/23) had Roomful at their high energy best as consecutive full houses boogied in a manner rarely seen in Utah. After a week of sizzling performances by The Dynatones, the Park City Cowboy Bar was once again filled with a roomful of blues. Unfortunately, these two fine bands played within a week of each other, leaving no other scheduled gigs for us blues fans to look forward to. Nonetheless, it was a week of the hottest boogie and blues to hit Utah since the summer blues festivals at Park West.
The Providence, Rhode Island based band maintains this philosophy about life, “Let’s Have A Party.” The attitude is ever-present when one attends their show. If you have not seen Roomful of Blues, you have never really danced. It is hard, and at the same time easy, to critique a Roomful performance. I could easily talk about the horn section’s blaring solos, about Ronnie Earl cutting incisive guitar work or a number of other attributes of this tight unit. There simply is not a weak spot in the band. It is also hard, because I can’t convey in words the intensity this band delivers. You must experience the band personally. Live blues acts rely on their intimate interaction and participation with the audience; ask Albert Collin, Luther Allison, BB or Albert King, and they’ll tell you. They’ll also tell you that Roomful of Blues
is not comparable to any other big band blues sound in the business. With that, catch the band when they come back in March. For now, some background information and news of their latest studio effort is in order.
Roomful of Blues
was founded in 1968, whilst the present lineup has been together in one form or another since 1970. The band started out as seven pieces, and the three saxes (Greg Piccolo-tenor, Rich Lataille-alto, and Doug James-baritone) as well as Al Copley (piano) and John Rossi (drums) have been there from the beginning. Trumpeter Bob Enos is the latest addition to the horn section. The other member of the brass section is Porky Cohen, old enough to be the father of some of these guys, yet, in some ways, the youngest member of the band. Porky blew trombone with the likes of Artie Shaw, Tommy Dorsey and Lucky Millinder, yet it is the other band members that cite those jewels from the 40's and 50's that Porky played. They seem to know more about music from Porky’s era than he does. Former leader/guitarist Duke Robillard left the band in 1979 and has since been aptly replaced by the wicked guitar playing Ronnie Earl Horvath. Ronnie has played with most names in the blues world, and recorded with Sunnyland Slim and Big Walter Horton. Preston Hubbard was initially with Roomful
during the latter part of the seventies, and appeared on the band’s first two albums. He rejoined the band and replaced Jimmy Wimpfheimer on bass as they readied for their third national tour last month.
The present nine piece lineup took to the studio in January to join forces with an old friend, Eddie ‘Cleanhead’ Vinson. Cleanhead and Roomful
first got together in the mid-70s. Despite the fact that Cleanhead and the band worked together so well, it took more than two years to finally make this meeting on record a reality. Cleanhead has been busy appearing at all the major blues and jazz clubs here and abroad for the past decade. The renowned alto saxman/singer can play anything up through bebop and sing the blues from any era.
Prior to the session, Cleanhead and the band had three gigs in New England, so they were able to “reacquaint” themselves. But most of the material came together at the session. The album starts out with a rousing Cootie Williams number - “House of Joy”. The tune is a feature for Cleanhead’s alto; Bob Enos particularly shines with the screaming high note trumpet work. “Friend of Mine” was written by blues pianist Reuben Brown. Ronnie Earl Horvath interjects some piercing licks between Cleanhead’s smooth vocals . While listening to “Movin’ with Lester,” I imagine my parents boppin’ at their college prom. And indeed, this swinging instrumental written by tenor sax great Lester Young is revived from the 1940's and given a fresh and lively approach. Each musician gets his two cents in on his seven minute number. Side one wraps up with a shuffle arranged by Al Copley – “No Bones” is Horvath’s dedication to his mentor, T.Bone Walker. Rich Lataille leads off the soloing followed by Piccolo and Porky. Horvath’s guitar is ever-present but not overpowering on his cookin’ little number that T.Bone would have been proud of.
Side two starts off with “That’s the Groovy Thing”, classic 1940's Earl Bostic (noted alto saxman). Cleanhead blows it out first and leads into, what is undoubtedly, Greg Piccollo’s gnarliest sax work on wax. Such wild tenor tantrums are normally only heard in South Side blues bars. The band finally takes a breather to slow it down during the emotional “Past Sixty Blues.” Cleanhead’s powerful vocals and definitive alto sax deny any signs of being past sixty. “Street Lights” is a showcase of brass with the horn section providing rhythmic accompaniment during each player’s screaming solos. Cleanhead composed the last cut, “Farmer’s Daughter Blues.” Al Copley introduces the number with a fitting little barroom piano tinkle to set the mood of the song and ‘Cleanhead’ blows it out on alto, belts out some blues and completes one of his best recordings in an astounding 8 hours studio time. No song on the album took more than two takes.
Roomful’s latest release with one of R&B’s greatest records and their skyrocketing well-deserved recognition leaves us with a dilemma. Either the Park City Cowboy Bar has to eliminate a wall and expand or we’ll have to start holding Roomful
in the Salt Palace (heaven forbid). The fact is, Roomful
By Brian Kelm
Canyon Times | Music
December 9, 1982
Can't Tear It Up Enough
From the opening licks of “Jumpin’ Bad,” the crowd on the dance floor at the Park City Cowboy Bar was indeed jumping that way. After bring the Legendary Blues Band to Salt Lake for three days last week, the Cowboys played host to The Fabulous Thunderbirds on Monday and Tuesday, December 6 and 7. This Texas-based band played to consecutive nights of full house crowds in its area debut. The band was en route to a nationwide tour promoting the Thunderbirds’ latest release, “T-Bird Rhythm” (1982 Chrysalis).
The Thunderbirds’ first three albums for Chrysalis were well produced by manager Denny Bruce, but the band was ready for a change. “We were just looking for a new sound and decided to see what a different produced would sound like,” said guitarist Jimmie Vaughn. Longtime fan Nick Lowe (of Rockpile fame) seemed just the man to implement that change. The result is a very “live” sounding album that seemingly “jumps of the wax at you, more so than our other lp’s,” commented harpman / vocalist Kim Wilson Tiger segues between songs intensifies the “live” effect.
“T-Bird Rhythm” continues in Thunderbirds tradition of powerhouse tunes, but seems to encompass many more genres of music. There’s a little something for everyone on this album. It’s blues with a touch of soul, rock with a touch of roll, but undeniably Thunderbirds.
“Can’t Tear It Up Enuff,” an original by Kim Wilson, leads off the album. The number proved especially rowdy at the Cowboy. “Can’t Tear It Up Enuff” is definitely music to put holes in walls to: if you’re into preserving your house, don’t slap this side on your turntable at a party. Fortunately the Cowboy has solid, cement walls.
“You’re Humbuggin’ Me” found the Thunderbirds in their finest, most familiar form-straight ahead rockin’ blues. Wilson’s high note harp work secures a scorching solo.
“My Babe” (not to be confused with the classic Little Walter version) was written by California rock and roller Ron Holden. Jimmie Vaughn’s Chuck Berry style riffs provide an apt backdrop for this high energy rocker.
Vaughn admits that the album contains “some blues, some rock, and of course, the usual T-Birds nonsense, which is my favorite.” If that is the case, then he must have enjoyed recording “The Monkey” in which Wilson recited a poem found on an old postcard. A monkey denies that man could have descended from the apes:
…Here’s another thing you will never see,
a monkey build a fence around a coconut tree;
and let the coconuts go to waste,
forbidding all the monkeys to come and taste.
While I build a fence around the coconut tree,
Starvation will cause you to steal from me,
The monkey speaks his mind!
“Ditty Wah Ditty” is a traditional song representing a fictitious place people described in the slave day. Bo Ridley’s version is the most prominent; the Thunderbirds similarly follow Diddley’s bopping percussive tempo.”
The Thunderbirds came out with Kim Wilson’s “Lover’s Crime” when they first got together to record. It was never put on a disc till recently, when the band decided to record this song of lover’s frustrations.
Thunderbirds nonsense again surfaces in a song conceived while flying from Dallas to Austin. • “Poor Boy’s whistling introduction” is reminiscent of New Orleans piano wiz Profession Longhair. The Louisiana influence continues in the next cut, “Tell Me” a lazy groove by none other than Lazy Lester.
Legendry bluesman Willie Dixon wrote the last song on the album which slides into a sort of reprise or answer to the song’s first half. In “Gotta Have Some / Just Got Some,” Wilson is looking for “some.” After a sudden pause midway through the tune, he acknowledged that he just got “some.”
While nearly all these fresh tunes were performed at the Cowboy, highlights also included several favorites from the past “Roll, Roll, Roll” “Extra Jimmies” – a showcase of Jimmie Vaughn’s guitar licks, and Slim Harpo’s “Scratch My Back.” After an encore of five songs, the Thunderbirds should feel assured of a newfound market.
Despite the air of good-time fun about it all, at the bottom the Thunderbirds are thoroughly serious musicians. Don’t let that greasy kid’s stuff in their hair or their “D.I. type” of clothing, fool you.
We’ll leave the last word to Jimmie Vaughn. “The best music has been made by people who never studied music. You don’t need to analyze it or study it or talk about it. You just know that it makes you feel…” He stops to search for a phrase. “That it moves you.”