Is your Lawyer in touch with the Future

The practice of law often seems stodgy and full of old white men shouting about dusty and forgotten documents. Which may be true at times.

In reality, the legal field is ever changing. Lawyers are constantly trying to figure out how to conform the law to advances in technology and the changing needs of society.

Some of these changes are vast and far reaching, often decisions of the supreme court of this affect. Other decisions issued by a lower court can have a substantial impact on a single practice area.

Such is the case of the recent Decisions of Almaraz/Guzman and Ogilvie.

Each of these cases is currently on appeal and the law could change again. Regardless, your attorney should be familiar with these cases and should discuss with you raising these issues at trial.

The decisions revolve around rather complex principles in the California Workers' Compensation system so I will be using some oversimplifications.

This all makes sense with historical context:
Pre 2004 - Workers Compensation in California operated under the "old rates" which provided whole person impairments to injured workers as a percentage impairment. The percentage equalled a dollar value. Low value cases would be in the 20% range which equalled aproximately $15,000.

2004 - Arnold Schwarzenegger following his campaign promise on Workers Comp reform passes SB899 which demands objective findings to support the awards in accordance with the AMA guides 5th edition. Further the whole person impairment percentages are revised.

Post 2004 - Low value cases are likely to have a value below 10% whole person impairment which equates to approximately $6500.

Post 2004 the value of cases was substantially diminished. There is a separate debate as to whether the new laws adequately compensate injured workers. That is not the discussion here.

In order to provide for injured workers, plaintiff's attorneys got creative and found some ways to get the value of cases higher.


Almaraz/Guzman - Under SB 899, a whole person impairment must be based on objective criteria and determined in accordance with the AMA guides 5th edition. The guides provide the basis for rating impairments. The decisions in Almaraz/Guzman permit a doctor to look beyond the strict rules laid out in the guides so that the whole person impairment attributed to the worker "Accurately and Adequately" describes their level of impairment.

What this means is that the doctors are still bound by the AMA guides but may take a more liberal view of the guides, using other sections and analogies to other injuries in order to more "adequately and accurately" reflect the injured workers injury. This can increase a whole person impairment.

The case law indicates there are several factors where the Almaraz/Guzman analysis will be more at issue:
1. Is this a post surgery case. Surgeries are rated lower in the new guides which may show that the injured worker is not "adequately" or "accurately" compensated in the claim.

2. Can the worker return to work. If the injury puts the person entirely out of work it is more likely than not a very serious injury which would indicate a higher level of compensation.

3. Age - If the individual is found to be older, their injured may have a greater impact on their ability to return to work which may not be accounted for in the rating.

4. Complicating Factors - This refers to extraneous factors which are not considered in the AMA guides which still should be considered. questions like did the surgery work? is the injured worker likely to improve over time.

5. Is there an obvious or patently low WPI for the injury described.

The above issues should be used by your attorney in deposing the doctor and determining whether an Almaraz/Guzman analysis is appropriate in your case.

Next week a discussion of Ogilvie.

Are you Authorized?

There is an interesting disparity between Workers Compensation and Personal Injury when it comes to the "authorized actions of an individual."

Legal speaking, "Authorized activity" refers to the actions of an employee for which the corporation has specifically given authority. A greeter at Wal-Mart has been authorized by the company to say hello and wear a blue vest. They may even be authorized to help someone find an item in the store. Are they authorized to drive a Wal-Mart truck? probably not.

What happens then when a Wal-Mart greeter having no truck driving experience decides to take an 18-wheeler around the block and causes an accident injuring the Wal-Mart greeter, another Wal-Mart employee and person on the street. Who can recover what?

The Wal-Mart greeter can get Workers' Compensation benefits if it can be shown that the decision to drive the truck was made to benefit the company and somehow there was a benefit to the company. The Wal-Mart greeter caused the accident and may get compensated!

The other Wal-Mart employee is entitled to Workers' Compensation as well. They may have a civil claim against the truck owner if it can be shown the truck owner was negligent in leaving the vehicle unattended or was negligent in lending the truck to the Wal-Mart employee. If Wal-Mart owns the truck though, there is no claim against the truck owner.

The person on the street may be the worst off though. They have no right to Workers' Compensation because there is no employee/employment relationship. So now they have to sue the Wal-Mart greeter and Wal-Mart and the truck owner.

I used a Wal-Mart greeter in this example as someone with clear liability for their actions but likely no ability to pay. Suing the Wal-Mart greeter will get you a judgement but no money in the end.

Suing Wal-Mart and the truck owner is a great idea. On a negligence claim, the case will hinge on the central issue of, authority. Did the Wal-Mart greeter have authority to drive the truck. Wal-Mart will certainly argue that the Greeter's job was to stand at the door and say hello and driving the truck was "outside their authority." Therefore Wal-Mart has no liability on a negligence theory because Wal-Mart was not negligent, the Greeter was beyond their authority.

There are other claims which could be made against Wal-Mart and the truck owner that may succeed. In California it is a negligent act to leave your keys in your car when it is unattended. If this is the case, there is a reasonable claim against Wal-Mart or the truck owner. There is claims like negligent entrustment, did the truck keys someone get in the hands of the Greeter inappropriately. Perhaps the Wal-Mart greeter asked to drive the truck and the keys were given to the greeter negligently.

What's the point here?

- If you are a person injured by a business' vehicle it is important that your lawyer examine all options for recovery against that business. If you only plead basic negligence claims, you may lose your case on a Motion for Summary Judgment before there is an opportunity to get to a jury.
- A business owner should always be aware of what the actual authority of their employees are and to make sure the employees are staying with in the scope of their authority. Tacit acceptance of employees exceeding their authority will lead to serious problems in the future.
- A good lawyer will investigate issues like the authority of an employees business. There are many kinds of authority: actual, implied, imputed, tacit, ratified. Any one of them may yield a positive result in the discussion above. Make sure your lawyer is competent in discussing authority in an employee/employer relationship.

The Important Intersection of Two Courts

This article is about Jurisdiction. Specifically how can Jurisdiction work for you.

Jurisdiction in the legal world means that a court has the power to hear a case. Courts have different Jurisdictions. A family law court can only hear family law issues. A criminal court can only hear criminal issues. Thus a judge in a criminal court can not order a divorce because it is outside the courts jurisdiction.

Sometimes an issue arises that falls under multiple jurisdictions. It is important to have a lawyer who can handle your claim in multiple jurisdictions. Otherwise you may lose out on rights or monetary awards.

A very common example of this is a person involved in a car accident while working. This does not just apply to truck drivers and couriers. If your boss told you to drive to the bank and were involved in an accident or you were picking up sandwiches for a staff lunch and got rear-ended. These too are examples of work related car accidents.

For example, consider the case of Bob. Bob is an employee of Megacorp. Bob was told to drive some important documents from Megacorp HQ to the post office. His boss told him, "Get these delivered before 5pm or you are fired!" It was 4.30 and Bob would have to drive fast to get to the post office on time. Bob drove as fast as he could to the post office. While passing through an intersection Bob was T-boned by Jane's car. Bob had very serious injuries and was taken to the hospital. What should Bob do?

There are two courts with jurisdiction over the case. Civil courts have the power to hear cases of general jurisdiction, meaning car accidents, personal injury cases along with most other cases. At the same time, because the Bob was at work he could file a workers' compensation claim at the Workers' Compensation Appeals Board(WCAB).

What should Bob do?

Answer: File a claim in both courts!

Filing a claim in the WCAB gives Bob the following remedies for his injuries. First, Bob would be entitled to Temporary Total Disability benefits. As long as Bob is disabled from working, his employer, or rather the insurance company, will pay Bob a salary replacement benefit. This is good for Bob because while he is off work due to injury he will still have to pay rent, eat and put gas in his car.
Second, Bob would be entitled to free medical care for his injuries. FREE. No cost, no copay.
Third, Bob would be reimbursed for his mileage when he drives to and from his doctor appointments.
Fourth, Bob would receive an award for his level of disability as a result of the accident.

Filing a claim in civil court entitles Bob to a claim against the other driver. In civil court Bob can recover lost earning, medical costs, pain and suffering damages, emotional injury, future lost earning, future medical costs and many others.

The biggest difference between the two courts is negligence. In workers' compensation there is no need to prove negligence. Bob need only show that he was working when the accident occured and he would be compensated. Bob could have CAUSED the accident and he would still recover full case value at the WCAB!

On the otherhand, in civil court Bob must prove that Jane had some cause in the accident to recover. If Bob is found to be totally at fault, he will get no money and lose his civil case. In certain situations Bob may even owe Jane money. The risk is greater in civil court but the reward can be greater.

Which is worth more? You can' t tell until you file both claims. Which is why having an attorney who can handle both claims for Bob will maximize the amount of money he recovers.

Remember when choosing an attorney to help you with your injuries, make sure they are willing and able to explore all available courts for you so you can receive what you are owed!