Posts made in March, 2014

No Sinecure for Workplace Injuries

Posted by on Mar 25, 2014 in Uncategorized | 0 comments

All employers are required by law to purchase workers’ compensation insurance for their employees, unless the employer is exempt in a particular jurisdiction. This can happen if the employer can show capacity to finance compensation for any injured worker without the assistance of an insurance company.

For non-exempt businesses, workers’ compensation insurance is there to relieve both the employer and employee from the legal issues associated with assigning fault for any injury. For example, if a construction worker gets injured from a fall at the worksite and is unable to work for some time, the cause will have to be determined to find out if the injury is due to employer negligence i.e. defective ladder or employee action i.e. horsing around before compensation is forthcoming. With workers’ compensation insurance, the insurer is not concerned with fault, but only if the accident occurred in the commission of the employee’s job.

In theory, this should make it easier for the worker to get financial assistance for any medical treatment as well as wage replacement for lost days of work associated with the injury. But between an employer who would like to keep premiums low by minimizing claims and an insurance company that makes it a practice to deny claims, making a workers’ comp claim may be more difficult than expected.

According to the website of Williams Kherkher, workers’ compensation insurance covers not only “active” injuries such as those from a fall, but also passive damages such as repetitive motion injuries.  The insurer will question whether the injury is actually work-related, especially for passive injuries which develops gradually and has no external manifestation. It is often necessary for the claimant to provide copious documentation to prove the cause of the injury.

Making a workers’ compensation claim can be a walk in the park, but in most cases it is more of a battle zone.

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Wrongful Death of a Minor Child

Posted by on Mar 21, 2014 in Uncategorized | 0 comments

The unnecessary death of a minor child is perhaps the biggest tragedy of all, pulling at the heart strings of even perfect strangers. It would be difficult if not impossible to imagine what the parents are feeling when the wrongful death of their minor child occurs.

Wrongful death is defined as the loss of life of an individual due to the negligent or willful action of another party. This may take the form of dangerous products, birth injuries, drowning, fires, or failure to supervise. A wrongful death lawsuit is a civil proceeding, but it may be filed alongside a criminal charge if the circumstances warrant it.

Purpose of a wrongful death suit

When a wrongful death action is filed, the end being pursued is monetary consideration rather than physical incarceration, as is the case with a criminal prosecution. The civil action is meant to compensate the decedent’s surviving family for the loss and as punishment for the responsible party. In general, calculating the appropriate awards depends on several factors, including the age of the wrongful death victim.

The Value of Youth

As a people, we value youth because of its potential. But when it comes to tort law, youth is not such a good thing. When an adult dies, it is much easier to quantify the economic damages resulting from death based on actual rather than speculative income.  When a minor dies, pecuniary damages will be calculated taking into consideration the expected life span, health, and earning potential. In some states, the jury is directed to also consider the grief of the parent and loss of consortium of the child.  Historically, award damages for the death of a minor child are quite small.

The death of a fetus, on the other hand, is not even actionable in most jurisdictions, although this is not true in Oklahoma, unless the fetal death is as a result of an abortion, diagnostic treatment, or therapy. According to the website of the Abel Law Firm, you may have legal recourse to get compensation for the loss of your unborn child.

If you are a parent whose child died because of the negligence of another party, you need to engage the services of an experienced wrongful death attorney in the jurisdiction. Even if the award may be small, the responsible party must still be made accountable.

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Probable Cause for DUI Charges

Posted by on Mar 14, 2014 in Uncategorized | 2 comments

Drunk driving laws in general require that the arresting officer has probable cause for requiring a defendant to take a field sobriety or blood test, even if the results of those tests confirm intoxication. Probable cause is actual evidence, visual or otherwise, that a crime has been or is in the process of being committed.

In a case of driving under the influence of alcohol or illegal drugs (DUI), probable cause may be in the form of the smell of alcohol on the defendant or erratic behavior that suggests intoxication. With probable cause, the arresting officer can then require a driver to submit to confirmation tests without a warrant.

A car accident constitutes an automatic probable cause for a sobriety test for all parties involved. If an individual proves to have a blood alcohol content (BAC) above the legal limit in that jurisdiction, DUI charges may be legally upheld.  A DUI defendant who causes a car accident may face more stringent sanctions if convicted than if merely charged with a DUI.

The issue of probable cause is important as a criminal defense for DUI or driving while intoxicated (DWI) because there is a tendency for law enforcement particularly in Texas to jump the gun in arresting suspected impaired drivers. This overzealous behavior of police officers is due to increasing pressure on them to crack down on drunk driving incidents.

This can have unfortunate consequences for the defendant; mere suspicion DUI or DWI can be enough to ruin one’s reputation.  If it can be demonstrated that there was no probable cause for the test, then the case may be dismissed pre-trial. This makes it crucial to mount an effective defense using the help of a Dallas criminal attorney who is well-versed in the DWI laws in the jurisdiction. This specific knowledge can be crucial in giving the lawyer an edge in his or her case planning.

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The Rationale behind Legal Separation

Posted by on Mar 8, 2014 in Uncategorized | 1 comment

In these days of no fault divorces or simply living apart without changing the legal status quo, filing for a legal separation may seem to be an unnecessary expense. There are processes that need to followed to make a separation, well, legal, and that always means money will change hands if only for the filing fee for the simplest of marriages with no property and no kids. If it is going to end up in divorce or reconciliation anyway, why bother with a legal separation?

Legal separation is more than a formality. It can be used to stabilize the important aspects of a marriage in trouble, which is why it already addresses issues such as child support, child custody and visitation, and property division. In most cases, a separation is in the nature of a trial, where the couple takes the time away from each other to decide whether to get a divorce or not. But there is no telling when the separation will finally end in divorce or reconciliation, or if it will end at all. It is perfectly possible for a couple to simply stay legally separated instead of suing for divorce if the issue of remarriage to another person is not in the cards for either spouse.

As pointed out on the website of the Law Office of Kirker Davis, LLP in Austin, even if the marriage is on the rocks, life goes on, money comes in, retirement and pension plans slowly mature, insurance policies take effect, and property gets bought and sold. Without a legal separation agreement establishing the parameters at least of conjugal property, it can be a big mess when the spouses finally decide to divorce or for estate planning when one spouse dies. If a separation is likely to last for more than a few months, it would just make better financial sense to cover the legal bases.

Because legal separation is for all practical purposes a divorce without the final decree, it can be complicated. Both spouses still need the services of a competent divorce or family law attorney to facilitate smooth sailing.

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Expedited Social Security Disability Benefits Processing for Veterans

Posted by on Mar 3, 2014 in Uncategorized | 4 comments

Starting on March 17, 2014, applications for Social Security disability benefits by veterans who are receiving 100% compensation for permanent and total (P&T) disability from the Veteran’s Administration (VA) will be prioritized. This means that disabled veterans can start receiving benefits from the Social Security disability program earlier than usual, together with automatic Medicare coverage. For wounded soldiers returning from the battlefield, this is a glimmer of hope for their futures.

The VA and Social Security Administration (SSA) both accommodate applications by disabled veterans for benefits, and they are not mutually exclusive. According to the website of the Jeff Sampson law firm, this means that a veteran receiving disability benefits from one agency does not disqualify him or her from applying for benefits from the other. If the disability occurred while on active duty, there may even free health care. However, veterans with a VA compensation rating of 100% P&T disability does not automatically qualify them under the disability criteria of the SSA. The only guarantee the SSA gives applicant veterans with this rating is that their application will be processed faster.

In order for veterans rated 100% P&T to qualify for Social Security disability benefits, the SSA checks if the applicant is unable to do the work they did before the disability and that the existing medical condition precludes any other gainful employment for at least 12 months.  The processing time will depend on the nature of the disability, comprehensiveness of the medical records submitted, and if it will be necessary for the applicant to undergo a medical examination.

This may sound simple enough, but the fact is despite faster processing, the batting average of successful SSDI applicants is less than 35% for the initial application, even in states that are considered “good” to apply in. In Illinois, for example, less than 30% of all initial applications are approved. For a better chance of getting an expedited approval, request the assistance of an accredited SSA or VA lawyer in preparing the documents for your initial application.

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