Posts Tagged ‘injury’

SEVEN MISTAKES YOU CAN AVOID WHEN INJURED ON THE JOB – PART 2

November 6, 2012

by Richard H. Irwin, Esq.,
Certified Workers’ Compensation Specialist

3.  SDIDo not delay File for State Disability Benefits through Employment Development Department as early on as possible in your case – even if you are receiving monetary benefits for Workers’ Compensation from your employer or their insurance carrier. Filing for such benefits, even if denied initially, will usually help to establish a “claim date” that will allow you to pursue such benefits at a later date when, for example, your Worker’s Compensation benefits cease.

It is not unlawful to file for such benefits at the same time you are receiving your Workers’ Compensation benefits, although you cannot receive full SDI benefits in addition to your Workers’ Compensation benefits.

4.  DO NOT REPRESENT YOURSELF – At least not without first speaking with an attorney experienced in handling Workers’ Compensation matters. Would you do your own heart surgery? Representing yourself in a system mired with complex litigation issues may not be a life and death matter, but your decisions, if in error, could cost you thousands of dollars, delayed or denied medical care, and/or substantial delays.

We’ve represented clients who came to us after having represented themselves for months, even years. In certain cases, they failed to file documents or pursue benefits in a timely manner, costing them thousands of dollars in benefits. Don’t let this be you.

(TO BE CONTINUED ON OUR NEXT BLOG)

What is the Value of an Injured Pet?

October 31, 2012

by Jean-Simon Serrano

In what seems to be a trend of new cases expanding the rights of pet owners, the Court of Appeal for the Second District recently ruled that the usual standard of recovery for a dead or injured pet (market value) is inadequate when applied to injured pets.

The recent case, Martinez v. Robledo, (2012) 2012 Cal. App. LEXIS 1098, which was actually the consolidation of two similar cases, presented the legal issue: What is the measure of damages for the wrongful injury of a pet?

In both of the consolidated cases, the trial court ruled that the measure of damages would be limited to the market value of the injured dogs.

On Appeal, the Court held that a pet owner is not limited to the market value of the pet and may recover the reasonable and necessary costs incurred for the treatment and care of the pet attributable to the injury.

The Court reasoned:

“There can be little doubt that most pets have minimal to no market value, particularly elderly pets. As amicus notes, while people typically place substantial value on their own animal companions, as evidenced by the large sums of money spent on food, medical care, toys, boarding and grooming, etc., there is generally no market for other people’s pets.   We agree that the determination of a pet’s value cannot be made solely by looking to the marketplace. If the rule were otherwise, an injured animal’s owner would bear most or all of the costs for the medical care required to treat the injury caused by a tortfeasor, while the tortfeasor’s liability for such costs would in most cases be minimal, no matter how horrific the wrongdoer’s conduct or how gross the negligence of a veterinarian or other animal professional.”

Using the notion that tort law was designed such that injured parties are to be “made whole,” the Court held, “that allowing an injured pet’s owner to recover the reasonable and necessary costs incurred in the treatment and care for the animal attributable to the injury is a rational and appropriate measure of damages. Such evidence is admissible under Civil Code section 3333 as proof of a plaintiff’s compensable damages. And a defendant may present evidence showing the costs were unreasonable under the circumstances.”

Thus, with this ruling, those who have the misfortune of having their pets injured by another are no longer constrained to the mere market value of their fuzzy friends.  Instead, owners may now recover reasonable costs incurred for the treatment and care of the pet which arose as a result of the injury.

As an animal lover, I believe this ruling is long since overdue and I am pleased to see the Court recognizing that pets have some intrinsic value beyond their mere market or replacement price.

SEVEN MISTAKES YOU CAN AVOID WHEN INJURED ON THE JOB

July 30, 2012

By Richard H. Irwin, Esq.
Certified Workers’ Compensation Specialist
(State Bar of California)

1. REPORT THE INJURY – If you are injured on the job report your injury. Ask your employer or a DWC1 (claim form). Fill it our and request a copy for your own records.

If you work for a small company and you are uncertain if they are insured for work-related injuries or how they will treat you once you report your injury, immediately document the fact that you submitted a claim form. This can be done by requesting a copy signed as received by your employer/sending a letter to your employer confirming that you reported an injury on a certain date. You might even text your employer or supervisor if he or she uses a cell phone.

2. SEE THE DOCTOR – If you believe your injury requires medical treatment or evaluation, ask your employer to see a physician immediately. This is not only the best way to ensure that your injuries are attended to, but the best way to document your injuries.

In fact, when you see the physician make certain that you indicate all symptoms that you are having and parts of your body that you believe were injured. Failure to mention a symptom or part of body may be used against you if you pursue the claim further.

(CONTINUED ON OUR NEXT BLOG)

WHAT TO DO AFTER A WORK RELATED INJURY

July 13, 2012

By Spencer E. Archie, Paralegal to:
RICHARD H. IRWIN, ESQ.
Certified Workers Compensation Specialist

The general and safe response is that all injuries should be handled the same way, however, that methodology may not be practical in the course of your work day. Any injury that causes you to believe that you need the care of a doctor should be reported immediately.

The person(s) that is considered your immediate supervisor is the person or persons you should first notify of your injury. In as clear and precise manner as possible, report to your supervisor exactly how the injury happened, noting the time and place where the event occurred. If the injury is serious enough for medical attention, request and insist that they send or take you to their emergency center for care.
Your employer must give you a DWC-1 claim form within one (1) day of knowing that you were injured. Filling out the claim form opens up your workers’ compensation claim. State law also lays out benefits beyond the basics that you may qualify for once you file the claim form with your employer.

If your employer does not give you the DWC-1 claim form, ask your employer for the form or call the claims administrator to get it. The claims administrator is a person or entity handling your employer’s claims. The name, address and phone number of this person should be posted at your work place in the same area where other work place information, such as where the minimum wage is posted. You can also get the form from the Division of Workers’ Compensation (DWC) web site at http://www.dwc.ca.gov. In the left navigation pane, under I Want To, click on Find a Form.

Heiting & Irwin has over 100 years combined experience assisting injured persons. Our Workers’ Compensation department is supervised by Richard H. Irwin, Esq., a California State Bar Certified Specialist in Workers’ Compensation. If you or someone you know has been injured, it is important to consult with an experienced, knowledgeable attorney in a timely fashion. To schedule a free consultation, please call our office at (951) 682-6400.

Five Things To Do After an Accident

July 9, 2012

Should you have the misfortune of being involved in an auto accident, it is important that you gather information and undertake a few responsibilities.

These are the most important steps to take following a collision. Click here for a useful form that you can keep in your vehicle. This form will help you gather important information at the scene of the accident.

1.         Obtain the information listed on our form:

Name, address, telephone number, driver’s license number of all drivers.

Insurance information from all the other drivers (Ins. co. name, telephone number and policy number).

License plate number and (VIN) for all other vehicles.

Name, phone number and address of any eyewitness to the collision.

2.         Report the accident:

immediately to the police and cooperate with them in preparing an accident report. If no police are available to respond to the scene, consider contacting the local police agency to determine if you can complete a report at a later time.  You will also need to fill out and file an SR-1 with the DMV.

to your insurance company, even if you are not at fault. If your insurance policy provides medical payments coverage and you require medical treatment because of the accident, your insurance company will provide you with information about how to use that coverage. Additionally, you may need to make a claim under your policy’s uninsured coverage (if your policy provides such coverage).

3.         Photograph:

Vehicles involved in the accident. Take several photographs that clearly show any damage. Take photographs from different angles and all four sides of the vehicles. Consider keeping a disposable camera in your car for this purpose, although a cell phone that takes quality pictures will work too.

Your injuries.

4.         Seek medical treatment without delay if you are injured or experiencing pain.

5.        Obtain legal advice by calling Heiting & Irwin before meeting with any insurance company representative, filling out insurance documents or giving a recorded statement or medical authorization to any insurance company (even your own). You have no obligation to provide this information before you have had the opportunity to speak with an attorney. If an insurance company representative contacts you before you are prepared to discuss your claims, politely explain that you do not wish to discuss the matter at this time, and you will contact them in the very near future to discuss your claims.

We suggest that you consult with an experienced personal injury firm.  Heiting & Irwin, offers free, no-obligation initial consultations. Our experienced attorneys will provide you with a thorough, thoughtful case evaluation that will help you to decide how best to proceed with your claims. Call (951) 682-6400, email or visit our website for more information.

NOT IN MY CAR: WHY THE REPAIR SHOP WILL BE LIABLE FOR A JOY RIDE

June 20, 2012

By Sara B. Morgan, Esq.

A coffee-run to my local Starbucks (Brockton and Arlington) prompted my last article about the liability of an automotive repair or service shop for damage to a vehicle left in its care. Since posting my last article, I am happy to report that I have not seen any other mechanics using customer’s cars to pick up coffee.

Garages and other vehicle repairers would be wise to heed the warning, however. As previously discussed, a vehicle repairer is fully liable to the car owner for any damage which occurs when the vehicle is used without the customer’s consent. Civil Code, Sections 1835 and 1836. Presumably, this would include using a customer’s car to take a joy ride to get coffee at Starbucks. In these situations, the vehicle repairer bears the burden of proof to demonstrate it was free from fault or negligence. Downey v. Martin Aircraft Serv. (1950) 96 Cal. App. 2d 94.

Finally, the law prevents a customer from signing away this protection. In Gardner v Downtown Porsche Audi (1986) 180 Cal. App. 3d 713, the court held that an automobile repair garage may not limit its liability for negligent care of the vehicles entrusted to it by having customers sign a written disclaimer. The Gardner court relied on the premise that contractual clauses which purport to exculpate repair garages for liability for negligence violate Civil Code, Section 1668 and are invalid as contrary to public policy.

In most circumstances, the vehicle repairer’s liability for its negligence, or the negligence of its employees, is limited to the value of the vehicle left in its care. Civil Code, Section 1840. However, exceptions exist which may involve fraud or misrepresentation. If you believe you are the victim of wrongful conduct and have suffered damages or injuries, it is important to consult with an experienced, knowledgeable attorney.

The law firm of Heiting & Irwin has over 100 years combined experience representing the interests of people who have been harmed by the actions of others. We offer free consultations, a warm and inviting office, and a friendly staff to anyone interested in speaking about a potential legal matter. If you would like to speak with someone about your circumstances, please call our office at (951) 682-6400 for a free consultation.

The Duty to Disclose STDs — The One that Never Goes Away

May 22, 2012

In a recent local case [Behr v. Redmond, (2011) 193 Cal. App. 4th 517], the plaintiff sued the defendant for damages arising from the alleged tortious transmission of genital herpes.  Essentially, the plaintiff alleged that the defendant committed fraud when he misrepresented to her that he was free of STDs, knowing this to be false.  Relying on his representation, the plaintiff ultimately contracted genital herpes from her encounter with the defendant.

 After trial, the Riverside County Jury awarded her compensatory damages in the amount of $4,003,600, including $2.5 million for future medical expenses for the treatment of her genital herpes. In a separate trial deciding the issue of punitive damages, the jury awarded the Ms. Behr $2.75 million.

 The decision was based, in part, on long-established California law. “People who know or should know they have genital herpes generally have a duty to avoid sexual contact with unaffected persons or to warn potential partners before sexual contact occurs.” Doe v. Roe (1990) 218 Cal.App.3d 1538, 1545.

 On appeal, the Appellate Court concluded that there was sufficient evidence to support the jury’s findings that Mr. Redmond was negligent and had also fraudulently concealed the risk of contracting herpes. The jury could reasonably conclude that plaintiff justifiably relied on defendant’s assurance that it was okay to have sex with him.

 The Court of Appeal did, however, make modifications to the award of future medical expenses.  The Court found that plaintiff’s claim that she was now uninsurable to lack factual support and thus struck damages based on this contention.  The Court thus found that plaintiff’s future medical expenses were the cost of her herpes medication over her expected life span.

 The award of punitive damages was not so disproportionate as to render it suspect or to otherwise require reversal. Plaintiff was not entitled to recover expert witness fees because she failed to support her memorandum of costs with a written offer to compromise.

The judgment was affirmed in part and reversed in part. The judgment was reversed as to the cause of action for fraud by misrepresentation. The award of future medical expenses was reduced to from $2.5 million to $72,000, and the total compensatory damages award was reduced to $1,575,600.

The Benefits of a Large Auto Insurance Policy

February 3, 2012

 by Jean-Simon Serrano

If you own and drive a car in California, not only does the law require that you have auto insurance, it is also a good idea.

 Technically, the law doesn’t require you to have an auto insurance policy.  In fact, as an alternative to insurance, one can post with the DMV a thirty-five thousand dollar ($35,000) bond or a thirty-five thousand dollar ($35,000) cash deposit.  Or, if you qualify, you may be issued a certificate of self-insurance from the DMV.  Realistically, an insurance policy is the only option for many.

 It is good to have an insurance policy and there are myriad reasons for this.

 Protection from Personal Liability

The first reason is probably the most obvious: protection from personal liability should you cause an accident.  If you are deemed to be at fault for an accident, you want an insurance policy to protect you and your assets for the damage caused.  This means picking a policy with appropriate limits.  How much is appropriate will depend partly on the assets you wish to protect.  For example, if you have multiple vehicles, a house, and/or other real property, a minimum policy of $15,000.00 per person/$30,0000.00 per incident will not adequately protect your assets if the accident you have caused does damages in excess of these minimal limits.  I have heard insurance defense attorneys joke that carrying a minimal policy is wise as it can lead to faster settlement in some cases and that attachment of assets is rarely sought.  This is not good advice.  Not only do many plaintiffs’ firms, such as the one where I work, regularly seek attachment of assets where necessary, carrying a minimal policy will limit the amount of underinsured motorist coverage you can carry, the benefits of which will be discussed later in this article.

 You should carry as large a policy as you can afford – the benefits of a large insurance policy go beyond mere asset protection.

 Civil Code § 3333.4 “Prop 213” Considerations

There is another very important reason to carry automobile insurance that is not well known to those outside the legal and insurance industries: Civil Code § 3333.4 or “Proposition 213” as it is commonly known.

 Civil Code Section 3333.4 states that a person “shall not recover non-economic losses to compensate for pain, suffering, inconvenience, physical impairment, disfigurement, and other nonpecuniary damages if… (2) The injured person was the owner of a vehicle involved in the accident and the vehicle was not insured…” Civil Code § 3333.4 [emphasis added].

 Thus, even if you did not cause the motor-vehicle accident, you may be unable to recover for, among other things, pain & suffering, physical impairment, and disfigurement, if your vehicle was not insured at the time of the accident.

 You could become horribly disfigured because someone was texting while driving and not be able to recover for this disfigurement because you were not, yourself, carrying an insurance policy at the time of the accident.  This is certainly a drastic example; however, it should be reason enough to ensure that your vehicle is always insured – at any level of coverage.

 Protection Against Others (Uninsured/Underinsured Coverage)

A third, extremely important, reason to have auto insurance is to protect yourself against the harms caused by others.

 Won’t my injuries be covered by the at-fault party’s insurance?  Yes, no, and maybe.  As mentioned earlier, California permits one to carry an insurance policy as low as $15,000.00/$30,000.00.  If this is the only insurance policy held by the at-fault party, and they have no assets, this may not be enough to compensate you for your damages.  Furthermore, what if the other party has no insurance!?

 Fortunately, Insurance Code § 11580.2 requires every policy of auto insurance issued in California to include coverage equal to the minimum required coverage ($15,000/$30,000) against owners or operators of uninsured motor vehicles.  Therefore, if you are insured, but the at-fault party is not, you should at least be covered for the minimum amounts allowed by law… unless you specifically decline this coverage in writing.  I cannot fathom why anyone would decline this type of coverage in exchange for minimal savings on their insurance premium.  Do not decline this coverage – you are only hurting yourself.

 Additionally, uninsured motorist coverage can also be accompanied with “underinsured” coverage.  This type of coverage will protect you in the event that the at-fault party has neither an insurance policy large enough nor other assets available to fully compensate you for your injuries.  If you sustain serious injuries for which you will require life-long care, discovering that the at-fault party has no assets and only carries $15,000.00 of coverage only adds insult to injury.  With underinsured motorist coverage, you can protect yourself against such a scenario.  Using the previous example, if you carried $500,000.00 in underinsured coverage, you would still have $485,000.00 in coverage after the at-fault party’s minimal insurance was depleted.

 Protect yourself against those who do not fully insure themselves!  Many people on the road carry only minimal insurance policies.  The risk is too great that you will be injured by someone with low to minimal policy limits.  It does not make sense to decline uninsured motorist coverage or to carry anything other than maximum underinsured coverage.

 In addition to compliance with the law, these are only a few of the many reasons it is a good idea to have an insurance policy with maximum coverage.  Not only will you be protecting yourself, you will also be protecting others.

Hazardous Recreational Activities

June 20, 2011

by Dennis R. Stout

Imagine yourself on your day off, participating in your favorite recreational activity, on public property. Whether it’s mountain biking, kayaking, off-road motorcycling/four-wheeling, surfing, or water skiing, what is your recourse should you sustain an injury by participating in that activity?

Generally speaking, the Government Code of the State of California provides that neither a public entity nor a public employee is liable to 1) any person who participates in a hazardous recreational activity, including any person who assists the participant, or 2) any spectator who knew or reasonably should have known that the hazardous recreational activity created a substantial risk of injury to himself or herself, and who voluntarily participated in that activity. California Government Code, Section 831.7 defines the hazardous recreational activity as a recreational activity conducted on property of the public entity that creates a substantial, as distinguished from a minor, trivial, or insignificant risk of injury to a participant or a spectator. The Government Code also defines those hazardous recreational activities as the type of activities described herein, including but not limited to mountain bicycling, cross-country and downhill skiing, kayaking, off-road motorcycling and four-wheeling, surfing, water skiing, body contact sports, and other types of activities. “Body contact sports” is defined as those where it is reasonably foreseeable that there would be rough bodily contact with one or more of the participants.

The Government Code of the State of California generally places the risk of injury upon the participant in these described activities. There are some exceptions to the general rule that neither the public entity nor the public employee is liable for injury, with some of those exceptions including failure to warn of a known dangerous condition; charging fees for participation in the specific hazardous recreational activity; and recklessness or gross negligence by the public entity that is a substantial factor in causing the injury.

The Government Code of the State of California is a minefield to plaintiffs, requiring specific knowledge and skills by attorneys familiar with the California Tort Claims Act. The attorneys at Heiting and Irwin possess that familiarity and knowledge of the Government Code of the State of California, including the claims presentation requirements and immunities of the potentially liable public entity and public employees. If you have a claim for injury or damages, whether it be against a public entity or public employee, or any other injury claims, we at Heiting and Irwin offer free initial consultations and are interested and available to discuss your claim. Please contact our offices at 951-682-6400 for a free consultation.

Are your kids safe at school if the school hires a pedophile?

May 5, 2011

By Sara B. Morgan, Esq.

According to the California Constitution, all students and staff of public schools have the inalienable right to attend campuses that are safe, secure, and peaceful. Cal. Const. Art. I, Section 28(c). All school districts must comply with this requirement, and are prohibited from taking official actions that violate or contravene its provisions.

But is a school district held accountable to these requirements, if it, for instance, knowingly employs a pedophile? The California Supreme Court says, maybe.

In the matter of C.A. v. William S. Hart Union High School District (2010) 189 Cal. App. 4th 1166, plaintiff alleges he was sexually harassed, abused, and molested by his high school guidance counselor, and further, that his school district knew the guidance counselor had engaged in such behavior in the past and/or was continuing to so engage.

Plaintiff’s claim was thrown out twice at the lower levels, whose decisions relied upon earlier cases holding school districts would not be liable for sexual molestation by teachers. However, in his dissenting opinion, Presiding Justice Robert Mallano discussed the potential for school district liability arising out of the negligence of other school district employees who were responsible for hiring, supervising, training, and/or retaining the known pedophile.

The possibility that a school district may, lawfully and without retribution, knowingly employ a pedophile, and knowingly fail to take steps to protect the students under its care, should be alarming to most parents. Hopefully, Chief Justice Tani Cantil-Sakauye and Justices Carlos Moreno, Marvin Bacter, Kathryn M. Werdegar, and Carol Corrigan, who voted to hear the case, will be able to ease the concerns of parents and children alike.

There are a number of situations in which students, and parents of students, injured during school and/or school activities can be compensated. At Heiting & Irwin, we have in excess of 35 years experience handling personal injury cases, including for injuries sustained during school and/or school activities. We offer free consultations, a warm and inviting office, and a friendly staff to folks interested in speaking about a potential legal matter. If you would like to speak with someone about your injuries, please call our office at (951) 682-6400 for a free consultation.

PROTECTING YOURSELF WITH UM/UIM COVERAGE

December 7, 2010

By Sara B. Morgan, Esq.

California requires all motor vehicle operators to maintain liability insurance with limits of at least $15,000. What happens if your injuries in an auto accident exceed that coverage?

Uninsured and underinsured motorist (UM/UIM) policies may help. They provide coverage for you, in case you are in an accident caused by a driver with no or little liability insurance. If the other driver has no insurance, and is thus “uninsured,” your insurance company compensates you for your bodily injuries and property damage, up to an including the amount of your policy.

An underinsured policy applies where the other driver has very little liability insurance, but your bodily injuries and property damage exceed that amount. Perhaps the other driver only has the state-mandated minimum of $15,000, but your injuries exceed $50,000. In this case, the other driver is “underinsured,” meaning he/she does not have enough insurance coverage to compensate you. Here, your insurance company would compensate you for your injuries that exceed the other driver’s insurance coverage, up to and including the amount of your policy.

With the increases in the general cost of living, and especially in medical services, the minimum liability requirement of $15,000 seems woefully inadequate to fully compensate those involved in anything other than minor motor vehicle accidents. One way to protect yourself against incurring these losses is through uninsured and underinsured motorist insurance, with limits appropriate for your particular circumstances.

Another way to protect yourself is to seek the assistance of an experienced, competent personal injury attorney. The law firm of Heiting & Irwin has for over 30 years represented clients in successfully bringing all types of personal injury lawsuits, including navigating the waters of insurance claims, and we are readily available to provide you with assistance. Please call us today if you need help.