Extending the boundries of "Work"

Did you know if you are injured at a work function out of the office, you may be compensated. If you are injured coming and going from the work function, you may be compensated. "Injured at work" has a much broader meaning than just within the four walls of the office.

Under the law there is the Subjective/Objective test which relates to work injuries that occur out of the office. The test reads like this: Did the injured worker SUBJECTIVELY believe they were obligated to attend the event? AND Was this belief OBJECTIVELY reasonable to an outside observer?

In regular person speak this can be explained as follows. This is a two part test where both parts must be met. The first part relates to the belief of the injured worker. Did the injured worker believe they had to attend the work function. Imagine an office holiday party held at an restaurant. If a person is injured at the office holiday party are they entitled to compensation? The first question is whether the injured person believes they were obligated to attend. How is this proven? Simple the injured worker need only testify under oath, "I believe I was obligated to attend the office holiday party."

Now comes the second part of the test. Would an outside observer consider the beliefs of the employee reasonable. This is proven by showing that the surrounding circumstances proves the employees belief that they were expected to attend the work event. Surrounding circumstances in our office holiday party example may include: Did the supervisors "require" attendance, was business going to be conducted at the party, would clients be in attendance, did the whole office go or only some people, was the invitation sent via company email or personal email, was the party paid for with company funds, how many supervisors/managers attended. All of these facts would go the outside observer(the judge) determining whether the employee was reasonable in thinking that they were obligated to attend the event.

If both parts of the test are proven, then the injury at the office holiday part is compensable. As I previously discussed, depending on the facts of the injury the injured person may also have a right for a second lawsuit against the third party responsible.

YOUR RIGHT TO PARTY!

Drinking on the job is bad. I don't encourage it. I don't recommend it. At the same time, Drinking on the job is not a bar to a workers' compensation claim.

If an employee alleges a work accident, the employer may raise a defense that that the injured worker was intoxicated. If the employer prevails, the employee takes nothing. The employer has a rather high bar to meet though.

1. In order to succeed the employer must prove two things. Labor Code Section 5705 (B) says that the intoxication must have CAUSED the injury. First the employer must prove the employee was intoxicated. Most employers don't have a breathalyzer in the office. So the judge will have to weigh the evidence and decide the issue of intoxication.

If the judge decides the employee was intoxicated. Then the second issue must be decided, CAUSE. Its not enough to show the employee was intoxicated. The employer must show that intoxication CAUSED the injury. If an employee is intoxicated at work and injured because a box falls on them. The intoxication did not cause the injury, rather it was the falling box. On the other hand if an employee is intoxicated at work and slips and falls, the intoxication may have caused the fall thus the employee will take nothing.

For both parts of the California Court of Appeals in Smith v. WCAB 123 Cal.App.3d 763 (1981) ruled that "We conclude that the California employer is required to establish that intoxication is a proximate cause or substantial factor in bringing about an accident resulting in death..."

In this instance, having a lawyer who can protect your interests and is aware of the two part test can go a long way in helping you prove your case.

2. What if drinking is part of your work? Put simply the affirmative defense in 5705 is greatly reduced or nullified. The case of McCarty v WCAB 12 Cal.3d 677(1974) was decided by the Supreme Court and involved a worker driving home drunk who struck a pole with his car and died. His widow applied for death benefits and was denied. The court ruled the widow could receive benefits because of the following facts:

McCarty was an employee of Apartment Plumbers, Inc., a corporation owned and managed by Alan McGowan and Robert Schlossberg. The company's normal working day ended at 4:30 p.m., but employees, including McCarty, frequently remained at the company office after that time to discuss business and social matters, drink beer and liquor, play poker, and shoot craps. The owner-managers participated in these activities, and often purchased the refreshments with company funds. Employees stored beer in the refrigerator at the office; McCarty, who preferred bourbon, kept a half pint of Jack Daniels on a shelf. McCarty's wife testified that he would come home from work late, with evidence of drinking, about 75 percent of the time. The owners knew that McCarty drank alcoholic beverages and that relatively little alcohol affected his behavior.

Aside from sounding like an awesome place to work, the take away lesson here is that if your employer provides you with alcohol, that does not preclude the filing of a workers' comp claim.
This would be especially true if you are injured at a company in the alcohol business, (Bartender, Sommelier, Liquor Sales, etc) or if you are injured at a company function where alcohol is served like a company party or special event. This would also permit recovery.

If you are involved in an alcohol related accident at work or as a result of work or as a result of consuming alcohol at work, you may be entitled to compensation.

One final note, most of the case law about people who drink at work usually end up with the drunk person dead. Keep that in mind when you decide to drink at work, the money isn't worth it when you die.

Be Safe This New Years!

New Years is an opportunity to revel with friends in a successful year gone by and to celebrate the coming good fortune. Not to sound like a cheesy public service announcement but if your New Year's plans involve alcohol Do Not Drink and Drive. There will be stepped up enforcement from police, there will be other drunks out and there is probably wet or icy roads.

Take a Taxi, walk, rent a limo, have a designated driver.

Lawyers know that after New Years there are lots of new cases because of all the hazards of New Year's Eve. Do not be in need of a lawyer. If you do need a lawyer contact one early.

I deal with people who are caught Drunk Driving at best these people receive a DUI. More likely, jail and additional charges. If you are pulled over and you have been drinking what should you do?

Here are your options:

1. Cooperate. Once you are pulled over everything is a gamble. Maybe you can sweet talk the cop. Maybe your BAC is low enough that you are under the limit. Maybe you pass the field sobriety test. Maybe Franco Harris catches an impropable pass and wins the game. Anything could happen.
In reality, if you really only had one beer and you really are sober, you may be getting pulled over for speeding. Cooperate take your speeding ticket and learn your lesson. If you have had anything more than two beers, you are taking a gamble by cooperating. Your breath test is something you have almost no chance to predict. It could be high, it could be low and it will depend on a number of factors.

2. Don't give Blood! No matter what unless you are sober, don't give blood. A blood test is incontrovertible. Whatever it says it what the court will find. Unless you are willing to pay exceptional amounts of money to your lawyer to fight a blood test(which you will probably lose), don't give blood.
A breath test is fungible. A breath test is not perfect. A breath test gives you a chance. Blood does not. If you are drunk and give a breath test, you are still going to lose. If you are on the borderline, a prosecutor may let you wiggle on a breath test. Not on a blood test.
IMPORTANT: failing to cooperate with any of the tests, blood, breath, field sobriety will land you a night in jail regardless of your status.

3. Remain Silent. This is the exact opposite of one. Rather than talking your way out of a ticket. Instead of being helpful, you can say nothing and do nothing. If you are drunk and you know you are drunk, choose this option. You will get taken to jail. You will get charged. YOU MUST CALL A LAWYER IMMEDIATELY! You know the jailhouse phone call... this is when you call your lawyer and have him show up at the station to help you out. It will cost money but its the best chance you have of avoiding a jail sentence. Don't wait. Don't talk to anyone. Just your slurred speech may be evidence against you if you were to say anything more than "(your name) and I want a lawyer. "
Lawyer's like myself are on call 24 hours a day for our clients. You should expect to pay a premium to your lawyer if you call him at night and need his help. It is worth it. If your lawyer is not willing to help you "after-hours" you may want to question what your lawyer is doing for you.

4. Run from the Cops. Don't do this. It is a horrible idea and will guarantee that you piss of the cops, the prosecutor and the judge. Going from a simple DUI to evading arrest is a fast way to a bad day (or more likely a bad 3-5 years).

5. Field Sobriety Tests. Pay attention to these tests. Pay attention to the field conditions. There are specific ways these tests should be given. If the cop does an eye test while his back is to his squad car while the lights are on it may invalidate the test. By having you look at him and the flashing lights, the flashing lights can affect the test. It the cop has you do a test in the cold with no jacket, you may be shaking due to the cold, not the alcohol. Keep track of these issues and make sure to inform your lawyer of these issues immediately.

Finally if you are drunk and not driving be careful. Too often another person may be drunk driving. Crossing streets, walking in a bike lane or any other activity that places you in close proximity to vehicles may be dangerous. Pay close attention to your own safety because the other cars can also be dangerous.

Happy New Year!

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.

Four Ways to Give Notice of Being Hurt at Work

Everyday I deal with the issue of people who are hurt at work. A very common situation is when an individual is hurt at work, and they tell their employer but no record is made of the incident. Then the employee goes to a doctor and the case is denied by the insurance company because "there was no first report of injury."

Protect your interests. Make sure the injury is properly reported!

One of the leading concepts in Workers' Compensation is that the employer is obligated to present the employee with the applicable claim forms once the employer has knowledge of the injury. This is called Reynolds Notice. Named for the case Reynolds v. WCAB (1974) 12 Cal.3d 726 (Reynolds). In this case, Mr. Reynolds had a heart attack at work in 1968. In 1970 he discovered he may have a right to a workers comp claim. He filed a claim in 1971. The WCAB denied his claim on a statute of limitations ground, saying Mr. Reynolds waited too long to bring his case.
The Supreme Court of California reversed the WCAB decision because the employer, PG&E, failed in their obligations under the Department of Industrial Relations Regulations which state, "In every case where an employer has notice or knowledge of an injury," the employer must inform the employee of their right to benefits or denial thereof as well as the employees right to appeal the decision to the WCAB. PG&E never provided the notice to the employee of his right to benefits. So the Supreme Court reasoned if the employer is going to ignore certain detrimental rules of the State, it can not benefit from other technical rules of the state.
This case created what is called Reynolds Notice. Once an employer knew or should have known of an injury, the employer is obligated to inform the employee of their right to workers' compensation benefits.

Regardless of Reynolds Notice, it is important that the employee also take appropriate action to make sure their rights are protected. Here are Four easy things you can do:

1. DWC-1 Forms- This simple form called a DWC-1, (available here) is the form all employers should have an employee fill out as soon as their is an injury at work. If the employer does not have you fill out a DWC-1 after an accident. AS SOON AS POSSIBLE, Fill out a DWC-1 and provide a copy to your employer and get the employer to sign it. Even if it is blank.

2. Wake-up in an Ambulance - Nothing is a more clear indication of a work injury then being transported from your work to a hospital. It makes clear that there was an injury and there is a record from the ambulance company. Many of my clients as a result of head trauma wake up in an ambulance or at a hospital. The employer denies the claim because no DWC-1 is filed. Judges are always astonished by this tactic because the ambulance record proves that a DWC-1 could not be filed.

3. Get thee to an M.D. - The sooner you see a doctor or hospital after an injury the better. Whether a company clinic or a county hospital. Going to the Doctor shows a need for medical treatment. The longer you wait though, the less sympathetic a judge will be. If you have been injured at work, ignore your evening plans, go to a hospital and get a record of your injury.

4. E-mail HR - Modern offices run on emails. The easiest way to establish Reynolds Notice in a modern office is to send an email to your supervisor or HR. It is time stamped and date stamped. Save a copy for yourself. Similarly you can send a text message and save a copy for yourself. Any time and date stamped communication to a supervisor is golden under the Reynolds case.

A good lawyer can do a lot to help your workers' compensation claim but sometimes a case is won or lost before you set foot in a lawyer's office. Help yourself and your attorney by setting a strong foundation for your case. If you have questions about Reynolds notice do not hesitate to ask.

RAINY ROADS BE SAFE - and how to survive an accident.

Its a rare rainy day in Southern California. Be careful on your drive. Stopping is more difficult. People are in a rush to get home on a Friday afternoon and the early sunset means you will have bad visibility on your commute.

Ask any of my injured clients if they would prefer to be healthy or have money from an accident. Almost all of them would prefer to be healthy.

Drive Safe, be safe, and hope to never need the services of a personal injury attorney.

Sometimes accidents are unavoidable like when another driver hits your car.

WHAT IS THE FIRST THING YOU SHOULD DO IN AN ACCIDENT?
think about your response.

Did you say call the police?
Did you say check on the other driver?
Did you say call your insurance company?

All Wrong.

If you are in an accident the first thing you should do is... nothing!

Stay in your car with your seat belt on, because there may another collision.

Few people realize that many accidents are actually several different collisions. In a typical three car rear-ender accident, there are two collisions to the front car. Car 1 is hit by Car 2. Car 3 unable to stop hits Car 2 which hits Car 1, again. If the driver of Car 1 had taken off their seat belt and stepped out of their car, they would be stepping into harms way of the second collision.

In the event of an accident. Stay in your car, stay in your seat. Keep your seat belt on. Wait until your car stops moving and the cars around you stop. Then wait another minute. You don't know whether the traffic behind and around you has stopped.

Once it is safe to exit your vehicle is the time to make sure you are ok. Make sure your passengers are ok. Make sure there is no fire. Worry about yourself, your passengers and your property first.

Are You Using Protection?

Legal malpractice insurance is the topic today. On January 1 2010 the rules will change.
Beginning January 1, lawyers will be required to disclose to their clients that they do NOT carry legal malpractice insurance. This is due to the adoption of rule 3-410 by the state bar of California.
As a prospective client of an attorney you should make certain your attorney has malpractice insurance. Malpractice insurance is there to help YOU! not the attorney.
Legal Malpractice Insurance is in place so that if an attorney causes your court case to be lost you may be compensated for the lost court case. If you feel your current attorney caused malpractice, you should consult with an attorney that handles malpractice claims.
If your attorney does not carry insurance, and there is a malpractice, you will only be able to collect against the attorney as an individual. There will not be an insurance company to provide financial support to pay your claim. If you expect an attorney to pay your claim individually, realize attorneys are normal people with mortgages and car payments. They are just as unable to pay a large court judgement as anyone else.
Remember it is your job as the client to inquire about your attorneys qualifications as well as insurance status. It is your attorneys job to work hard and diligently represent your interests in your case