Lawyers.com Blog

Appellate Court Reverses Judge's Finding that Employee Voluntarily Limited His Income

nospam@example.com (John F. Sharpless) — Wed, 27 Aug 2008 17:08:50 -0400

The First District Court of Appeals recently provided some guidance on what is necessary for an Employer/Carrier to deny a temporary partial disability (TPD) claim based upon voluntary limitation of income. In Whitaker v. North American Tank Lines, Inc., the Judge of Compensation Claims ruled that despite the fact that the claimant was limited in using his upper extremity and felt he could not do his work as a truck driver, he had voluntarily limited his income and therefore was not entitled to TPD benefits. The first DCA reversed holding that in order to assert a voluntary limitation of income defense, The Employer/Carrier has the burden of proving that at least one job exists within the claimant’s restrictions. In Whitaker, the Employer/Carrier did not prove that the truck driving job, or any other job, was within the claimant’s work restrictions.

Continue reading "Appellate Court Reverses Judge's Finding that Employee Voluntarily Limited His Income"

Employee Rights Laws II

nospam@example.com (Jonathan I. Nirenberg) — Sun, 24 Aug 2008 18:49:21 -0400

Part 1: Overview of Federal Anti-Discrimination Employment Laws

Part 2: Overview of Other Federal “Wrongful Termination” Employment Laws

In most states, including New York and New Jersey, unless you have a written employment contract, are a member of a labor union, or are a civil service employee, you are probably an employee at will. Employment at will is the general principal that your company can fire you for any reason, or even for no reason at all. It also means you can quit your job for any reason.

Fortunately, federal, state, and local laws create many exceptions to employment at will that give employees significant protection from an unfair or arbitrary termination. This, the second part of a four part series, discusses many other important federal “wrongful termination” laws. The first part of the series discusses some of the most important federal anti-discrimination laws. Part three (release schedule: August 31, 2008), addresses some of the most important exceptions to employment at will under New Jersey law. Part four reviews employee rights laws under New York State and New York City law (release schedule: September 6, 2008).

Overview of Other Federal Employment Laws

The following is an overview of some of the most important federal “wrongful termination” employment statutes other than anti-discrimination laws. This is not intended to be a comprehensive list of all such laws. It is also important to understand that not every federal employment law applies to every employee. If you believe your employment law rights have been violated, it is recommended that you contact a knowledgeable, dedicated and experienced employment lawyer.

Civil Rights Act of 1881 (Section 1983)

Provides a remedy for an individual if someone acting on behalf of the state or local government has violated their rights under the United States Constitution.
Protects constitutional rights including the right to freedom of speech, freedom of association, freedom of religion, freedom from unreasonable search and seizure, due process of law, and equal protection of law.
Prohibits individuals action on behalf of a state from discriminating on the basis of race, gender, religion, and disability status, including prohibiting employment discrimination and harassment.

Consolidated Omnibus Budget Reconciliation Actof 1985 (COBRA)

Entitles covered employees and their families to continue health coverage for a period after certain qualifying events, such as when the employee loses his or her job. Ordinarily, the period of continued coverage is up to 18 months. Health insurance continuation coverage under COBRA is at the employee’s cost.

Employee Retirement Income Security Act of 1974 (ERISA)

Sets minimum standards for most private employer’s pension and health insurance plans.
Requires employers to provide certain information regarding the features and funding of certain pension and health insurance plans.
Requires a grievance and appeal process for certain employee benefit plans.

Fair Labor Standards Act of 1938 (FLSA)

Requires companies to pay most non-exempt employees time and a half for each overtime hour, meaning more than 40 hours worked in a week.
Sets a minimum wage for most jobs. As of July 24, 2008, the federal minimum wage is $6.55 per hour. The federal minimum wage will increase to $7.25 per hour on July 24, 2009. Many states, including both New York and New Jersey, have established minimum wages that are higher than the minimum required by the FLSA.

Family and Medical Leave Act of 1993 (FMLA)

Entitles qualified employees to take up to a total of 12 weeks off per 12 month period for:
1. his or her own serious health condition,
2. the serious health condition of a member of the employee’s immediate family (meaning a spouse, child or parent),
3. the birth of the employee’s client, or the placement of a child through adoption or foster care, or
4. caring for a child who is less than one year old.

Protects employees who take FMLA leaves, by entitling them to return their jobs, or an equivalent position, at the end of their leaves.
Makes it illegal for an employer to retaliate against an employee who took an FMLA leave, or to otherwise interfere with an employee’s rights under the FMLA.

Health Insurance Portability and Accountability Act of 1996 (HIPAA)

Provides protection for employees who have preexisting medical conditions.
Prohibits employers from discriminating against employees and other covered dependents based on their health status.

Sarbanes-Oxley Act of 2002

Prohibits brokers and dealers involved in investment banking from retaliating against securities analyst employees whose research reports make adverse, negative, or unfavorable conclusions about the company.
Provides whistleblower protection to employees of publically traded companies by prohibiting retaliation, discrimination and harassment against:
1. Employees who assist with certain investigations into violations of the Sarbanes-Oxley Act, Securities and Exchange Commission (SEC) rules and regulations, or other federal laws relating to fraud against shareholder; and
2. Employees who file, testify, or otherwise participate in a proceeding alleging a violation of the Sarbanes-Oxley Act, SEC rules and regulations, or other federal laws relating to fraud against shareholders.

The lawyers at the employment and civil rights law firm of Resnick Nirenberg & Cash, P.C., are experienced at representing employees in New York and New Jersey whose federal employment law rights have been violated.

Continue reading "Employee Rights Laws II"

FERS & CSRS Disability retirement: End of Summer and Postal VER

nospam@example.com (Robert R. McGill) — Sun, 24 Aug 2008 18:42:58 -0400

Summer is almost at an end. The Postal Service, through the auspices of the Office of Personnel Management, is offering Voluntary Early Retirement (VER). For many, this is a positive thing; the decision to take the VER should be a financial decision. An analysis comparing the monetary return should be made between what an employee would receive under the VER and under disability retirement; if the financial difference is great, then obviously the employee should consider filing for disability retirement after the VER has been approved. Remember that the employee would have one (1) year to file for disability retirement benefits, after the individual has been separated from service. Steps should be taken now, however, before accepting/filing for the VER, to establish the medical condition and disability prior to separation from service. This can be done by discussing the medical condition with one's treating doctor, before the VER is applied for. Such early steps will help ensure the success of a future filing for disability retirement benefits -- because the employee must establish that the medical condition impacted one's ability to perform the essential elements of one's job prior to separation from Federal Service.

Sincerely, Robert R. McGill, Esquire

Subprime Mortgages and Theories of Liability-Deja Vu (Part Four)

nospam@example.com (Michael E. Clark) — Fri, 22 Aug 2008 10:15:21 -0400

Part One of this series (click here) covered some features of the subprime mortgages now defaulting in huge numbers and how these features had been seen in many improper transactions that led to the Savings and Loan Crisis of the early 1990s, and in the more recent corporate governance scandals associated with enormous investor losses typified by Enron and WorldCom.

Part Two (click here) examined some statistics and problems with liability theories plaintiffs are asserting to establish the liability of defendants in various securities class actions seeking damages claimed to have been caused by the implosion of the subprime mortgage market.

Part Three (click here) addressed the heightened pleading requirements for falsity and scienter imposed by the Private Securities Litigation Reform Act of 1995 (PLSRA) and how the caselaw interpreting these provisions makes it very hard for class action plaintiffs to successfully establish secondary liability of defendants.

This part (Part Four) of the series provides links to and summarizes some of the more interesting observations made by made by leading commenators about various aspects of the subprime market collapse and related issues.

Although a considerable amount of scholarly work is being conducted about various aspects leading to the collapse of the subprime mortgage markets, a lot of it seems to be educated guesswork—and should be critically analyzed. In addition to some of the suggested readings that I previously noted in Part One (click here), readers may find the following articles and reports particularly interesting:

Donald Nordberg, Waste makes Haste: Sarbanes-Oxley, Competitiveness and the Subprime Crisis, Working Paper (May 10, 2008), available at http://ssrn.com/abstract=1131674 (commenting, in part, on some similarities between the subprime lending markets and the problems underlying Enron and similar companies: "Despite the differences, there are some eerie similarities. Both involved hyperactive financial intermediaries. Both involved use of new instruments of finance to offload risk, and in particular the use of off-balance sheet entities to disguise (in the case of Enron) or just 'distribute' (in the case of subprime CDOs) the risk."). ©Donald Nordberg,Waste makes haste, at 21;
Christopher L. Foote, et al., Fed. Reserve Bank-Boston, Public Policy Discussion Papers No. 08-2, Subprime Facts: What (We Think) We Know about the Subprime Crisis, and What We Don't (May 30, 2008), available at http://papers.ssrn.com/sol3/Delivery.cfm/SSRN_ID1153411_code349801.pdf?abstractid=1153411&mirid=2 (Rejecting the popular argument that subprime mortgage "resets" were a major problem: "Proponents of the centrality of resets in the current crisis based their view on the following logic. Subprime hybrid ARMs offer borrowers extremely low 'teaser' rates for some initial period . . . but then these mortgages 'explode' to high rates thereafter. Lenders find such loans attractive because of the high post-reset interest rates. Borrowers find them attractive because of the teaser, but then regret their decisions when they find themselves paying high interest rates. Is this an accurate description of the subprime lending model? No.");
Adam B. Ashcraft and Til Schuermann, Federal Reserve Bank of New York, Understanding the Securitization of Subprime Mortgage Credit,Staff Report No. 318 (March 2008), available at http://papers.ssrn.com/sol3/Delivery.cfm/SSRN_ID1071189_code599.pdf?abstractid=1071189&mirid=2 (describing the key players involved in the securitization process and noting there are seven key frictions among them based on the asymmetry of information available—i.e., that some players lacked sufficient information to properly evaluate the degree of risk involved);
John Kiff and Paul Mills, Money for Nothing and Checks for Free, Working Paper WP/07/188, International Monetary Fund (July 2007), available at http://www.imf.org/external/pubs/ft/wp/2007/wp07188.pdf (noting that the impact of the market's implosion has been limited to certain sectors as a result of securitization: "[W]hile some structured credit hedge funds have suffered large losses, mortgage securitization appears to have helped disperse the impact throughout the financial system, in contrast to the Savings & Loan crisis of the early 1990s. The credit cycle is thus largely playing out in the securities and derivatives markets, rather than on bank balance sheets.");
Roberto G. Quercia, et al., The Impact of Predatory Loan Terms on Subprime Foreclosures: The Special Case of Prepayment Penalties and Balloon Payments, Housing Policy Debate, Vol. 18, Issue 2 (2007), available at http://www.ccc.unc.edu/documents/foreclosurepaper.pdf (examining the impact of two predatory loan terms—prepayment penalties and balloon-payment requirements—on foreclosure and prepayment propensities within the subprime first-lien refinance market and and concluding that "extended prepayment penalties and balloon payments signifcantly increase the odds of foreclosure");
Robert E. Lang, Katrin B. Anacker, and Steven Hornburg, The New Politics of Affordable Housing, Housing Policy Debate, Vol. 19, Issue 2 (2008), available at http://www.mi.vt.edu/data/files/hpd%2019.2/1._hpd_forum_web.pdf (tracing the history of the federal initiatives for affordable housing, such as mortgage insurance by the Federal Housing Administration (FHA) and mortgage guarantees by the Veterans Administration (VA) and questioning about whether the current subprime mortgage crisis will once again place affordable housing high on the national agenda);
Ronald D. Utt, Comment on Robert E. Lang, Katrin B. Anacker, and Steven Hornburg’s “The New Politics of Affordable Housing,” Housing Policy Debate, Vol. 19, Issue 2 (2008), available at http://www.mi.vt.edu/data/files/hpd%2019.2/3._hpd_utt_web.pdf (the author, from the Heritage Foundation, believes that the regulatory costs from federal housing programs may have some connection to the subprime mortgage problems: "There is also reason to believe that some portion of what is now seen as the subprime crisis will be found to be the market’s response to the growing mismatch between incomes and home prices that land regulations have caused."); and
Steven L. Schwarcz, Protecting Financial Markets: Lessons from the Subprime Mortgage Meltdown, Duke Research Paper No. 175 (Nov. 2007), available at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1056241 (exploring why the subprime financial crisis occurred despite the number of different protections to regulate the financial markets, along with the "the market-discipline approach undertaken by the second Bush administration, and what this crisis can teach us about protecting financial markets").

More to Come

©Michael E. Clark, Hamel Bowers & Clark LLP. Information provided in this blog does not, nor is it intended to, create an attorney-client relationship. Rather, it is offered solely for informational purposes and is not intended to constitute advertising. More information about me, my practice, background, and interests, is available from the firm website, www.lawyers.com/hamelbowers&clark, and the following sites (including links to some of my published papers and articles: www.avvo.com/attorneys/77007-tx-michael-clark-121553.html and www.superlawyers.com/texas/lawyer/Michael-E-Clark/a051f497-181f-4399-862b-cd4a7ad5c1cf.html

The pharmaceutical law treatise for which I am Editor-in-Chief was published in December 2007 by BNA and is now being supplemented for 2008. See http://storefront.bnabooks.com/epages/bnabooks.storefront/en/product/1576.

I will be moderating a panel for the Third National Securities Fraud Institute to be held in Arlington, VA on October 2-3, 2008 at the Hyatt Regency-Crystal City. This panel will focus on the continuing importance placed by federal regulators on revenue recognition issues, and examine SABs 99, 101, and 104. Details about the upcoming event are available at http://www.abanet.org/cle/programs/n08sfr1.html

Continue reading "Subprime Mortgages and Theories of Liability-Deja Vu (Part Four)"

Law Office settles car accident leading to a man's death.

nospam@example.com (Jeffrey M. Braxton) — Wed, 20 Aug 2008 16:05:59 -0400

A thirty year-old husband and father of two small children, died instantly when his car struck the rear of a tractor-trailer. The deceased struck the back of an illegally parked tractor trailer on the shoulder of I-75 at 5:00 in the morning and died instantly. The driver of the tractor trailer was sleeping and failed to turn his hazard lights on and put warning barriers required by law behind the trailer. Additionally, construction was on-going in the area creating a deadly scenario as a contractor extended the original shoulder but failed to remove the original shoulder line. This in turn created an additional thru-lane which was supposed to be a shoulder. Prior to impact, the plaintiff believed he was in the thru lane but was mistakenly in the shoulder causing him to impact the back of the trailer. Litigation on behalf of the spouse and children was initiated by attorney Jeffrey M. Braxton from the Law Office of Steven Slootsky against multiple parties including the tractor trailer owner, common-carrier and driver, and two construction contract companies. All parties settled prior to trial. This settlement was confidential.

As a successful Fort Lauderdale car accident attorney, Jeffrey M. Braxton is a member of the Florida Bar, American Bar Association and Broward County Bar Association.

Continue reading "Law Office settles car accident leading to a man's death."

FERS & CSRS disability retirement: When & how to act

nospam@example.com (Robert R. McGill) — Tue, 19 Aug 2008 20:19:54 -0400

When people call me to ask if they need legal representation in filing for disability retirement benefits under FERS or CSRS, I try and provide as "objective" an opinion on the matter as possible. I represent hundreds of people in filing for, and obtaining, disability retirement benefits; it is my specialty, and it is how I make a living. At the same time, however, I believe that I can be completely honest in providing guidance as to whether an individual should obtain legal representation, or needs to obtain representation. For instance, for individuals who have already sent in their disability retirement packets to OPM (via the Agency for those still on the rolls; directly to Boyers, PA for those who have been separated from service for 31 days or more), I normally advise the applicant to wait -- wait until a decision has been rendered, and hopefully the individual will not have to expend the funds for attorneys fees, and an approval will be in the mail. On the other hand, every now and then, an applicant who is waiting for a decision from the Office of Personnel Management, will describe the content and substantive materials comprising the disability retirement packet, and certain statements -- during a telephone consultation with me -- concerning what is stated in the applicant's Statement of Disability, will give rise to concern, and in those instances, it may be wise to either withdraw the application, or immediately take steps to supplement the disability retirement packet. Each FERS or CSRS disability retirement packet is unique, because each individual & individual's medical condition is unique. That's what makes the practice of law in the field of representing Federal and Postal disability retirement applicants so interesting, and so professionally satisfying.

Sincerely, Robert R. McGill, Esquire

Iowa OWI Law: Use of the PBT in Court

nospam@example.com (Mark Thompson) — Mon, 18 Aug 2008 14:20:09 -0400

When a subject is questioned regarding an OWI, he is often offered a preliminary breath test (PBT) by the officer. Based in part on the results of this test, the officer will make his decision to whether charge the subject with OWI.

As mentioned in other posts, the PBT cannot be used at trial for evidence of intoxication. But what about when the results are favorable, and what happens when the information comes into trial “on accident?”

The basis for excluding the PBT from trial is based on statute. Iowa Code §321J.5 provides in part,

“The results of this preliminary screening test may be used for the purpose of deciding whether an arrest should be made or whether to request a chemical test authorized in this chapter, but shall not be used in any court action except to provide that a chemical test was properly requested pursuant to this chapter.”

To gain further understanding of the specifics of this law we must look to the caselaw. State v. Massick, 511 N.W.2d 384, 388 (Iowa 1994) solidifies the fact that the results are not admissible. State v. Deshaw, 404 N.W.2d 156, 158 (Iowa 1987) holds that it is reversible error for the officer to testify to the results while on the stand. However, evidence that a defendant submitted to the test is admissible, so long as no reference is made to the results, as outlined in Gavlock v. Coleman, 493 N.W.2d 94, 96 (Iowa App. 1992).

Now, what happens when the defendant agrees to give up his right to keep this information out of trial, and instead wishes to enter the evidence to prove his innocence? Well, the caselaw proves that the results cannot be used for any purpose. In State v. Iowa Dist. Court for Johnson County, 630 N.W.2d 838 (Iowa 2001), Iowa City’s hometown court was overruled when the judge considered the results of the PBT when granting a deferred judgment. The Iowa Supreme Court stated, “It is apparent here that the district court was partialy persuaded by the lower PBT to grant a deferred judgment…clearly this decision is contrary to section 321J.5.”

Therefore, do not rely on the results of the PBT to haunt you or save you in court. Its only purpose is to help the officer determine if an arrest needs to be made. For more information on Iowa OWI and Criminal law, visit www.thompsonjustice.com.

Continue reading "Iowa OWI Law: Use of the PBT in Court"

Employee Rights Laws I

nospam@example.com (Jonathan I. Nirenberg) — Mon, 18 Aug 2008 12:43:08 -0400

Part 1: Overview of Federal Anti-Discrimination Employment Laws

Fortunately, federal, state, and local laws create many exceptions to employment at will that give employees significant protection from an unfair or arbitrary termination. This, the first part of a four part series, discusses some of the most important federal anti-discrimination laws. The second part describes many other important federal "wrongful termination” laws. Part three (release schedule: August 31, 2008), addresses some of the most important exceptions to employment at will under New Jersey law. Part four reviews employee rights laws under New York State and New York City law (release schedule: September 6, 2008).

Federal Anti-Discrimination Employment Laws

The following is an overview of some of the most important federal anti-discrimination laws. This is not intended to be a comprehensive list of all federal laws prohibiting discrimination in employment. It is also important to understand that not every federal employment law applies to every employee. If you believe your employment law rights have been violated, you should contact a knowledgeable, dedicated and experienced employment lawyer.

Age Discrimination in Employment Act of 1967 (ADEA)

Protects employees who are at least 40 years old from age discrimination.
Prohibits employers from harassing employees who are 40 years old or older because of their age.
Makes it unlawful to retaliate against individuals who object to age discrimination.

Americans with Disabilities Act of 1990 (ADA)

Prohibits employers from discriminating against employees who are disabled, perceived to be disabled, or have a record of a disability.
Requires employers to provide reasonable accommodations to allow disabled employees to perform the essential functions of their jobs.
Protects individuals who complain about disability discrimination or who request a reasonable accommodation for a disability, by prohibiting retaliation.

Equal Pay Act of 1963 (EPA)

Prohibits employers from discriminating between men and women in terms of salary and other wages if they hold the same job under similar working conditions.

False Claims Act of 1986 (FCA)

Allows individuals to file whistleblower actions (called qui tam actions) against individuals who defrauded the federal government, including health care fraud, fraud by defense contractors, and fraud in other federal spending programs.
Permits some whistleblowers who bring successful claims under the False Claims Act to receive a portion of any damages recovered.

Genetic Information Non-Discrimination Act of 2008 (GINA)

Prohibits employment discrimination on the basis of genetic information. Additional information about GINA is available here.

Occupational Safety & Health Act of 1970 (OSHA)

Requires employers to provide a workplace free from recognized hazards that are causing or are likely to cause death or serious physical harm to employees.
Makes it unlawful for employers to fire or otherwise discriminate against employees who file complaints, testify, or exercise other right under OSHA.

Older Workers Benefit Protection Act of 1990 (OWBPA)

Prohibits companies from denying employee benefits to older employees because of their age, with limited exceptions.
Adds numerous requirements before a settlement of an age discrimination claim to be enforceable under the ADEA, such as requirements that the employee is:

           1. Provided the ages of employees who were laid off and retained
                in a reduction in force;
           2. Provided at least 21 days to review the agreement
                (45 days in the case of a mass layoff);
           3. Given at least 7 days to revoke the agreement after signing it; and
           4. Advised to consult a lawyer before accepting a severance offer
                that contains a waiver of rights.

Pregnancy Discrimination Act (PDA)

Prohibits discrimination on the basis of pregnancy, childbirth and related medical conditions, as forms of unlawful sex discrimination. The Third Circuit has recognized that this includes prohibiting discrimination against a woman because she had an abortion.

Section 1981 of the Civil Rights Act of 1866 (Section 1981)

Prohibits discrimination due to race or ethnicity in the making, performance, modification, and termination of contacts, including employment contracts, or with respect to the benefits, privileges, terms, and condition of a contractual relationship.

Title VII of the Civil Rights Act of 1964 (Title VII)

Prohibits discrimination on the basis of race, sex (gender) color, national origin, and religion.
Makes it illegal for an employer to harass an employee due to race, sex (gender) color, national origin, or religion, including prohibiting sexual harassment.
Protects individuals who make complaints of discrimination or harassment based on race, sex (gender) color, national origin, and religion, by prohibiting retaliation.

Uniformed Service Employment and Reemployment Rights Act of 1994 (URESSA)

Prohibits employers from discriminating against an employee because of his or her service in the Armed Forces Reserve, the National Guard, or other uniformed services.
Entitles veterans, reservists, National Guard members, and other members of the uniformed services to return to their jobs in the private sector after an absence for military service or training.

Worker Adjustment and Retraining Notification Act of 1994 (WARN Act)

Requires most companies with 100 or more employees to provide at least 60 days advance notice of a mass layoff or plant closing.

The attorneys of the employment and civil rights law firm of Resnick Nirenberg & Cash, P.C., are experienced at representing employees in New York and New Jersey whose federal employment discrimination law rights have been violated.

Continue reading "Employee Rights Laws I"

Planning to Take the Citizenship (Naturalization) Exam?

nospam@example.com (Laura Kalish) — Fri, 15 Aug 2008 17:03:05 -0400

It is easy to feel intimidated or overwhelmed by the idea of taking the naturalization test, especially if you have not taken a test in a long time. Here are the most important things to remember:

1. Make sure your immigration filing is properly prepared. From the very beginning, be sure to be complete and truthful with your application and paperwork. Get whatever help you need in completing and filing your application. Be sure that the immigration service has your proper address at all times. These early steps will prevent anxiety later on.

If you have a disability, you may be entitled to special accommodation at the test. If so, accept the help. Don't try to be brave and "tough it out".

If your primary language is one other than English and you are entitled to an exemption to take the test in your primary language, don’t be afraid to do so. Be sure that you think about these things in advance and file your request in time.

2. Be aware of how you study best and take the time to do it. If you learn best by reading and writing things yourself, do that. If you learn best by having someone ask you questions out loud, do that. Many communities have classes or workshops at libraries and community centers for test preparation. If you are the kind of person who learns best in a group, find one. Use a good study guide to help you prepare. Also, look at the study materials provided free online on www.uscis.gov. Be sure to download and use the ones that will help you.

3. Prepare yourself physically and emotionally. Be sure that you get proper rest and nutrition for at least a few days before the test. Try to avoid last minute "cramming" or staying up all night. Pace yourself with your studying. Get yourself mentally prepared to have a great result. Wear clothing that is comfortable, but still makes you feel good. You should go into the test rested, comfortable and confident!

Laura Kalish is an immigration attorney and a partner in the Kalish Law Firm in The Woodlands, Texas. She can be reached at kalishlawlaura@aol.com. The firm’s website can be found at www.kalishlawtexas.com.

Kalish Law Office

25907 Oak Ridge Dr.
The Woodlands, Texas 77380

281-363-3700

www.kalishlawtexas.com

Continue reading "Planning to Take the Citizenship (Naturalization) Exam? "

FERS & CSRS disability retirement: Further comment on Vanieken-Ryals

nospam@example.com (Robert R. McGill) — Thu, 14 Aug 2008 21:07:57 -0400

Vanieken-Ryals v. OPM, decided by the U.S. Court of Appeals for the Federal Circuit on November 26, 2007, has an interesting statement from the deciding Judge, which can be used as "firepower" for anyone who is attempting to obtain Federal Disability Retirement benefits (note of caution: for lay non-attorneys, be careful in how you use it in trying to convince a lay, non-attorney OPM representative): "In addition, neither the MSPB nor OPM discussed the content of Dr. [ ] or [ ] evidence in any meaningful way, which further demonstrates that it was not properly considered. OPM, for example, resorted to a laundry list of "objective" tests and documents that the medical evidence did not contain rather than examining the evidence and evaluating what it did contain." Interpretation: If OPM's argument is to focus upon what is missing, they have violated their primary Agency/administrative responsibility -- that of evaluating, in some "meaningful" manner, the medical evidence which was in fact submitted. This can be used effectively for the Reconsideration Stage by diplomatically pointing out the error of OPM, and citing Vanieken-Ryals, and highlighting the relevant portions of the medical documentation previously submitted.

Sincerely, Robert R. McGill, Esquire

Can You Sue Your Employer in Virginia for a Work Place Accident?

nospam@example.com (Gerald G. Lutkenhaus) — Thu, 14 Aug 2008 09:51:08 -0400

The Virginia Workers' Compensation Law was adopted in 1918. The law provides compensation for lost wages and medical benefits. The common law right to sue the employer for the work place injuries in Virginia was abolished. However, the employer lost the right to defend the accident on the basis of the worker’s contributory negligence or assumption of risk. Also, the worker did not have to prove the employer’s negligence caused his injury. As noted by the Virginia Supreme Court in Feitig v. Chalkey, 185 Va. 96 (1946), the principles of the Virginia Workers’ Compensation Law have been accepted by practically all of the States in the United States.

The principle restriction on recovery in a workers’ compensation case is that you cannot recover "pain and suffering" as you can in a personal injury case. The principle benefit may be a speedier but smaller recovery without resorting to costly litigation.

Of course, if the injury results from the actions of a third party, the worker can file a personal injury action against the third party provided the third party is not a co-employee. The usual example of this is if the worker is driving a company vehicle which is negligently struck by a driver of another vehicle. In this situation, the worker would have a workers compensation claim against his employer and a personal injury claim against the driver of the other vehicle. Also, if the injury was caused by defective equipment, then the worker could sue the manufacturer of the machine and workers compensation would not be a bar to this kind of product liability lawsuit.

In my workers' compensation practice, potential clients often ask "Why can’t I sue my employer for my injury?" The only response I can make is that the State of Virginia in 1918 like the other States in the United States at about this time decided that industry and labor were better served if employers were required to provide workers’ compensation insurance as a cost of doing business rather than the worker having to rely on the uncertainty of personal injury lawsuits. Thus, in almost all Workers Compensation Cases, you do not have a personal injury case as an additional remedy.

This may be considered AN ADVERTISEMENT or Advertising Material under the Rules of Professional Conduct governing lawyers in Virginia. This note is designed for general information only. The information presented in this note should not be construed to be formal legal advice nor the formation of a lawyer/client relationship.

Gerald G. Lutkenhaus has been representing Workers Compensation Claimants in the Central Virginia Area for over 30 years. He received Martindale-Hubbell's highest rating in 2003, for more information check our website at www.virginiadisabilitylawyer.com or www.geraldlutkenhaus.com.

Continue reading "Can You Sue Your Employer in Virginia for a Work Place Accident?"

Missing a Step: Is this a Workers Compensation Accident in Virginia?

nospam@example.com (Gerald G. Lutkenhaus) — Thu, 14 Aug 2008 09:41:58 -0400

You are rushing at the work place. You go down the stairs and you miss a step or you stumble and down you go. This can result in a serious injury depending upon the severity of the fall. Since this happened at the work place and since you were on company business, this should be compensable under the workers' compensation law. However, in Virginia you have a problem.

It is not enough to show in Virginia that you were at the work place when the accident occurred. Virginia has rejected the "positional risk" test in favor of the "actual risk" test. What this means is that something must have caused the fall. That something must be a "risk" of the employment. Thus, if there was a slippery substance on the floor, or if the steps were slippery, or if the rug on the steps was defective, or if the stairway did not have proper lights, or if the steps themselves were narrower than normal, or higher than normal, then the injured worker may be able to establish the necessary "actual risk" associated with the employment. Also, if the employee was carrying something that made the descent of the steps riskier than normal that could provide the "actual risk" to convert the claim into a compensable accident. However, if the worker simply misses the step on an ordinary journey down or up the stairs then the claim will be denied because no "actual risk" has been shown.

In summary, the injured worker who has fallen on a stairs or even a ladder at work is well advised to discuss this incident as soon as possible with an experienced workers compensation attorney.

This may be considered AN ADVERTISEMENT or Advertising Material under the Rules of Professional Conduct governing lawyers in Virginia. This note is designed for general information only. The information presented in this article should not be construed to be formal legal advice nor the formation of a lawyer/client relationship.

Gerald G. Lutkenhaus--has been doing workers compensation in Virginia for over 30 years. In the July 1999 issue of Richmond Magazine he was rated one of the Best Attorneys for Workers Compensation in Central Virginia. In 2003 he was giving the rating of AV by Martindale Hubbell.

You can get more information from our websites at www.virginiadisabilitylawyer.com or www.geraldlutkenhaus.com

Continue reading "Missing a Step: Is this a Workers Compensation Accident in Virginia?"

Social Security Processing Time in Tampa

nospam@example.com (John F. Sharpless) — Tue, 12 Aug 2008 12:07:39 -0400

According to the Social Security Administration’s National Ranking Report for the month ending June of 2008, the Tampa Office of Disability Adjudication and Review (ODAR) has a processing time of 648 days. This means that from the date a Request for Hearing with an Administrative Law Judge is filed the average processing time is just short of 22 months. The Tampa ODAR ranks 122nd out of 147 hearing offices nationwide.

Does every claimant have to wait? One of the most positive things an advocate can do is to collect and develop the evidence to establish that the claim can be awarded on the record without a hearing. The Administration has an interest in awarding and disposing of meritorious claims so that their limited resources and overworked judges can focus on adjudicating claims that are not as clear cut. For information about my office and more on our philosophy please see our website at www.tampa-ssd.com.

Continue reading "Social Security Processing Time in Tampa"

FERS & CSRS disability retirement: What it means to have the "burden of proof"

nospam@example.com (Robert R. McGill) — Mon, 11 Aug 2008 21:02:56 -0400

Remember that the applicant who is requesting disability retirement benefits from the Office of Personnel Management always has the burden of proving, by a preponderance of the evidence, that he or she is entitled and eligible for disability retirement benefits. Even if the Agency proposes and effectuates a removal based upon one's medical inability to perform the essential elements of one's job (thereby invoking the "Bruner Presumption"); nevertheless, the burden of persuasion always remains with the applicant. Never assume anything; yes, the Bruner Presumption is nice to have, but don't ever rely upon it to have your disability retirement benefits handed to you, because it won't be. The Bruner Presumption "can be rebutted if adequate evidence is identified in the record to establish that the appellant actually is not entitled to disability retirement; even with the rebuttable presumption, the appellant retains the burden of persuasion at all times to establish his entitlement to disability retirement" (See Morton v. Office of Personnel Management, 88 M.S.P.R. 691 (2001). Remember: you always have the burden to prove your entitlement to disability retirement benefits; you must prove it; you must work tirelessly to show it.

Sincerely, Robert R. McGill, Esquire

The Right to Counsel in Iowa

nospam@example.com (Mark Thompson) — Fri, 08 Aug 2008 11:08:09 -0400

The United States Constitution guarantees the right to counsel for the accused. The State of Iowa has taken this right and written it into our state statutes. Iowa Code §804.20 states:

Any peace officer or other person having custody of any person arrested or restrained of the person’s liberty for any reason whatever, shall permit that person, without unnecessary delay after arrival at the place of detention, to call, consult, and see a member of the person’s family or an attorney of the person’s choice, or both. Such person shall be permitted to make a reasonable number of telephone calls as may be required to secure an attorney. If a call is made, it shall be made in the presence of the person having custody of the one arrested or restrained. If such person is intoxicated, or a person under eighteen years of age, the call may be made by the person having custody. An attorney shall be permitted to see and consult confidentially with such person alone and in private at the jail or other place of custody without unreasonable delay. A violation of this section shall constitute a simple misdemeanor.

Not only does our state code require the right to counsel be honored, but they have made it a crime for an officer to deny this right. But where does this law stand in practice? And, more specifically, what is the impact of this law on the ‘implied consent’ law that is invoked in OWI cases?

A person arrested for OWI has a limited right to contact an attorney under this code section. A person cannot, however, use this section to interfere with the two hour time limit for blood alcohol testing as required under Iowa Code §321J.6(2). This means that the right to consult with counsel is limited to circumstances that do not materially interfere with the time limit.

Generally speaking, the right to counsel is satisfied by allowing the accused to make a telephone call. There is no duty on the officer to inform the accused of their right to consult an attorney, and any request must be made in good faith.

Therefore, much of the freedom to consult with an attorney is at the discretion of the officer making the arrest. After reviewing scores of OWI arrest videos, I have seen officers exercise a wide discretion on this question. Many times, the officer will allow the accused to make many phone calls, now that cell phones are generally available and present. I have seen officers allow five or six separate attempts to contact an attorney, and time frames from a few minutes to fifteen or more.

An officer will likely allow the accused enough time to reasonably contact an attorney, but the officer will end these attempts as soon as he sees that no genuine effort is being made. The accused can contact a family member for help in finding an attorney, but as soon as the conversation goes from ’searching for an attorney’ to ‘what’s for supper, honey?’ the officer may end the phone call immediately.

Another important point to stress is that there is no right in Iowa for these phone communications to be private. This may contrast with the language of the statute above, but our Supreme Court has stated “the telephone calls which section 804.20 assures to persons in custody are not intended to be confidential as is shown by the provision that they are to be made in the presence of the custodian. They are for the purpose of enabling the person to arrange for a legal consultation and assistance.” State v. Craney, 347, N.W.2d 668, 677 (Iowa 1984).

To summarize, if a person is accused of an OWI offense and taken down to the police station, he will be given the right to call an attorney and speak with that attorney with the officer listening. As soon as the attempts to reach an attorney become futile, non-genuine, or threaten the two hour time limit, the officer will continue with the implied consent proceedings and demand that the accused either takes or refuses the Datamaster/Breathalyzer test.

This article was prepared by Attorney Mark Thompson and law student Cody Farrens. Mark's website is www.thompsonjustice.com.

Continue reading "The Right to Counsel in Iowa"