Did you know that even if you are injured on the job and that injury is partially your fault or even totally your fault you are, in many (even most), circumstances entitled to workers’ compensation benefits. These benefits can include monies paid to you at two-third’s of your average weekly wage while you are out of work due to you injuries, compensation for any permanent disability you may have, as well as your medical care expenses (both current and future) being paid by your employer or insurance carrier. [Read more…]
In the recent case, Winn v. Pioneer Medical Group, Inc. (May 19, 2016, No. S211793) 2016 Cal. LEXIS 3432, the Supreme Court of California has defined boundaries for Elder Abuse claims.
Ms. Cox, an elderly patient, sought treatment for painful vascular symptoms in her feet and legs.
In January and February 2007, Mrs. Cox’s lower extremity vascular symptoms worsened, and in February 2007, she was diagnosed Mrs. Cox with peripheral vascular disease. [Read more…]
I’ve written before about the Medical Injury Compensation Reform Act (MICRA). A law introduced in the 1970s which, among other things, capped the general damages (pain and suffering) for medical malpractice cases at $250,000.00. It also shortened the amount of time you have to bring against a medical provider from the standard 2 years (for most other types of personal injury) down to just 1 year. I cannot tell you how many times I have heard potential clients tell me “I knew something was wrong with the surgery but the doctor told me to wait one year”…
MICRA’s reach has been expanded once again in the California Supreme Court’s ruling in Flores v. Presbyterian Intercommunity Hospital.
We cannot control what other drivers do on the road. Another driver’s thoughtless or careless act can change our lives forever in a matter of seconds. It is frustrating and frightening to think that our lives and the lives of our loved ones could be in the hands of a distracted, drunk, speeding, or reckless driver.
Because we cannot control the other drivers, we need to take steps to protect ourselves in the event of an accident. In some cases, we may be able to avoid the accident. If we cannot avoid the accident, there are some things we can do to avoid making the accident worse. [Read more…]
When dealing with a facial dog bite case, there are a few factors that can be quite important in the overall outcome of the case, separate and apart from establishing liability (responsibility, negligence, carelessness, etc.) of the dog owner.
It is very important to have photographs taken at various stages of the dog bite and during the recovery period. Visual evidence can be an extremely powerful tool in helping the plaintiff get a fair recovery from a jury, as well as an insurance company and its defense attorneys.
Because of the heightened risk of infection from this type of injury, it is also very important to obtain competent, qualified medical care for the dog bite wound(s). It may even be necessary to consult with a plastic surgeon. A jury, and in turn, an insurance company and its defense attorneys, will typically expect you to undertake all reasonable efforts to return your face to its condition before the dog bite, and will even undervalue any claims of long-term visible injuries if they can hire a doctor to testify that the scarring, deformity, discoloration and like could be remedied with a “simple” medical procedure. [Read more…]
In certain serious Workers’ Compensation cases, it is possible to have family members (usually the injured worker’s spouse) paid to take care of the injured worker.
Typically this requires a physician to recommend some form of nursing care and/or Home Health care. If it is determined that the Workers’ Compensation insurance carrier will or should pay for the provision of such services, it is often preferred, for various reasons, to have a family member provide said services on behalf of the injured worker. After all, who will have a greater interest in taking care of the injured individual – a stranger or a family member?
Assuming that the family member can provide the necessary care, it is often possible, as well as advisable, for the injured party’s attorney to negotiate with the defendant to have the family member reimbursed for said care. This is often beneficial to all the involved parties as the injured worker gets the benefit of very personalized and compassionate care. The family member can often (depending on the frequency and/or level of said care) receive up to a few thousand dollars monthly for said care and this cost to the insurance carrier is a lot less than paying for professional in-home care.
Remember, however, it all starts with a physician’s recommendation for such. If you think this applies to your case or that of a loved one, inquire of both your doctor as well as your attorney.
Court of Appeals Addresses Whether Liens Must be Negotiated Prior to Providing Plaintiff’s Counsel with Settlement Funds
A new case has addressed an issue that has long been an annoyance of plaintiff’s attorneys. The case is Karpinski v. Smitty’s Bar, Inc.(2016) 2016 Cal App LEXIS 277. Mr. Karpinksy was the victim of a serious beating while on the Smitty’s premises. After filing suit, the case settled at mediation on May 5, 2014. As of July 22, 2014 (almost 3 months after settlement), Smitty’s had refused to provide plaintiff with the settlement proceeds. Smitty’s argued that plaintiff had to negotiate his various medical liens before the funds would be provided. Smitty’s made this argument despite specific language in the settlement agreement indicating that plaintiff would be responsible for all medical liens and would indemnify Smitty for any claim brought by the lienholders for non-payment.
This is a common practice by defense firms and I have personally encountered cases wherein settlement funds are withheld for months while defendants earn interest on the settlement funds. Further, some lienholders can take many months to provide final lien amounts and then additional time after that to finish lien negotiations.
Frustrated with this practice, Karpinksi’s attorneys brought a motion to enforce the settlement agreement pursuant to Code of Civil Procedure Section 664.6. The Court granted the motion and ordered Smitty’s to pay out the $40,000.00 settlement. Rather than pay, Smitty’s attorneys appealed this decision – ultimately hanging this entire matter up in the Appellate Court until April 12, 2016. The matter settled in May 5, 2014 — Smitty’s held onto $40,000 of settlement proceeds until at least April 12, 2016. [Read more…]
The California Supreme Court heard oral arguments within the last week in a case in which a defendant received an enhanced sentence for possessing a multi-tool Swiss army knife at the time of a traffic stop. During the traffic stop, the Swiss army knife was discovered in the defendant’s pocket, with the blade allegedly in a deployed position. The issue before the State Supreme Court is whether the concealed Swiss army knife qualifies as a weapon capable of inflicting bodily harm.
The Fourth District Court of Appeal overturned the underlying court decision, finding that no reasonable juror could determine that the Swiss army knife blade was “locked into position,” in order to be considered a weapon under the Penal Code of the State of California. Section 16470 of the California Penal Code states that: “a non-locking folding knife” or “a pocket knife” can be used as a stabbing weapon “only if the blade of the knife is exposed and locked into position.”
There are multiple opinions from law enforcement sources, district attorneys, and appellate counsel as to whether this multiple use tool is a weapon under the Penal Code. One source states that to exclude these Swiss army-type knives would be to frustrate the language of the Penal Code. Other attorneys suggest that the Swiss army knife is not capable of stabbing, as it is more prone to collapse under the sufficient pressure of a stabbing maneuver.
The Supreme Court appears to have focused in on the issue of whether the Swiss army knife is a locking or “non-locking device” capable of inflicting bodily harm. The issue remains unresolved, as the State Supreme Court has taken the matter under submission as it ponders whether the Swiss army knife is a weapon capable of inflicting bodily harm.
A word to the wise — be careful when carrying these multi-use tool/army knives, pending a decision as to whether they constitute a weapon capable of inflicting bodily harm. We know that these items are not permitted in courts; however, possession during a traffic stop may still pose a problem until the Supreme Court rules on this issue.
If you have any questions or issues regarding legal matters of any nature, from criminal to civil, feel free to call the Law Offices of Heiting & Irwin for a free consultation.
Puskar, a forest ranger at Yosemite National Park was severely burned while living at County provided housing. As part of his job, Puskar was required to stay at the park while working as a ranger. He rented a residential unit from the County – a public entity.
The County, whom rented the living units to its rangers, also provided fire extinguishers to the residents.
On October 22, 2011, Puskar was cooking at his residence when oil in a skillet caught fire. Puskar ran to get the fire extinguisher only to find that it was not there. Unbeknownst to Puskar, the fire extinguisher had been removed about a month earlier so that it could be refilled. The County never refilled or replaced the fire extinguisher, leaving Puskar without one.
Desperate, Puskar grabbed the skillet, intending to take it outside. As he was exiting his residence, the screen door swung back, hitting the skillet and splashing burning grease on Puskar’s hand. As he continued to run down the stairs, the pan dropped and Mr. Puskar was further splashed with grease, suffering serious burns.
Understandably, Mr. Puskar brought an action against the County due to the injuries he sustained, blaming the County, in part, for failing to return the fire extinguisher it had removed a month prior. The County asserted that it was immune under Government Code section 850.2. This section reads:
Neither a public entity that has undertaken to provide fire protection service, nor an employee of such a public entity, is liable for any injury resulting from the failure to provide or maintain sufficient personnel, equipment or other fire protection facilities.
The Court granted summary judgment for the County, effectively dismissing Mr. Puskar’s action.
This case illustrates the strong protections in place for public entities in California. It is difficult to maintain an action against a City, County, or other type of public entity. If you have a case involving a public entity, you want to have a law firm that is experienced in prosecuting public entity claims. Call us today.
Case referenced is Puskar v. City and County of San Francisco, 2015 Cal. App. LEXIS 751, *1-3 (Cal. App. 5th Dist. Aug. 27, 2015)
News is circulating about an auto accident caused, at least in part, by on of Google’s self-driving cars. A report filed by Google indicated that the crash, which took place in Mountain View, California in mid-February, occurred when the self-driving car tried to get around some sandbags, colliding with the side of a bus traveling in the same direction. Apparently, both the test driver and the car “believed” the bus would slow down, otherwise let the self-driving car through.
Luckily, there were no injuries, at least not according to reports. The incident does raise some interesting questions for personal injury auto accident attorneys and the litigation surrounding auto accidents. Can a vehicle possess a belief or awareness? How does this effect the question of reasonableness of one’s actions? Does a vehicle testify as to that belief in court? In a hypothetical situation where the test driver of the self-driving car was injured, is there a way to introduce the “belief” of the self-driving car as evidence to support a case against the bus driver? Or to defend a case against the bus driver seeking compensation for his or her personal injuries? When the car is in autonomous driving mode, are both the test driver and the company responsible for the injuries caused?
There are many areas of potential liability and pitfalls to explore under such circumstances, which can make it very important to consult with an experienced attorney that handles these types of cases. At Heiting & Irwin, we have over 100 years combined experience with injury cases, and we offer free consultations, so please do not hesitate to call us.