Thursday, November 20, 2014

How Workers’ Compensation Affects Personal Injury Cases

workers' compensation
Workers’ Compensation cases vary from personal injury actions in many ways. Personal injury is based on fault. But if an employee gets injured on the job, he or she is entitled to workers’ compensation benefits whether the employer is at fault or not.

Workers’ compensation is often the only remedy for work-related injuries or illnesses. The law requires employers to compensate injured employees for lost wages and medical expenses. In exchange for workers' compensation benefits, employees cannot sue their employer for negligence when workers’ compensation is available—most of the time.

Under certain circumstances however, both workers’ compensation and personal injury law come into play. If an employee gets injured in an automobile accident while he’s driving a company vehicle or the employee’s vehicle for work related purposes, the employer is obligated to pay workers’ compensation.  If the other driver is at fault, the employee can make a claim for personal injuries against the at-fault driver for damages and also file a workers’ compensation claim with his or her employer.

In another scenario, if an electrician on a construction job falls from scaffolding improperly installed by another contractor, the electrician can file for workers’ compensation benefits as well as sue the potentially at-fault contractor for negligence.

If the employer’s conduct is reckless or egregious, aka seriously bad, the employee may be able to sue the employer for damages beyond what’s available through workers’ compensation. Employers that do not provide appropriate safety training; require employees to work without protective equipment; or make them perform a job that that runs afoul of safety standards could face liability if an employee gets hurt.

Other exceptions to workers’ compensation limits include injuries caused by defective products, tools or equipment, toxic substances or if the employer does not carry workers’ compensation insurance.

Note that if an employee brings a third-party lawsuit against that contractor or that at-fault driver, the workers’ compensation insurance carrier can file a claim against the settlement or damages award to recoup what it paid for your claim. If that seems unfair, we agree, but it’s the law. Routinely the personal injury attorney will negotiate with the representative of the workers compensation carrier and will convince them to accept much less than what they actually paid.

Because workers’ compensation only offers a limited amount of benefits, does not account for pain and suffering and comes with some pretty complex conditions, it’s important to understand when and how to navigate outside of the workers’ compensation system. An experienced personal injury attorney can help determine if and when to pursue a case.

Wednesday, November 5, 2014

Oakland: Take Creative Steps to Pedestrian Safety

pedestrian safety tips

Pedestrians are especially vulnerable to serious injuries, even death, when walking on or alongside any street traveled by cars. Most of the time, the driver claims not to see the pedestrian in time. In order to ensure pedestrian safety at intersections, a city needs to essentially hit the driver with a wet towel as they approach a crosswalk or other avenue where driver and walker cross paths. To accomplish this, cities need to get assertive and creative in their design.

A motorist is required under California Vehicle Code Section 21950 to yield to pedestrians whether crossing in a crosswalk or not. However, signals and crosswalks don’t always equate to a safe stroll across the street. We’ve all heard news stories of pedestrians getting hit by inattentive drivers making a swift left turn or failing to yield at a crosswalk. On Grand Avenue near Lake Merritt last year, an elderly man died from injuries sustained when a driver did not stop as the man proceeded through the crosswalk. Unfortunately, he’s not the only one.

Thankfully, the City of Oakland is making strides toward creating safer streets for pedestrians. Harrison at Westlake Middle School and Bay Place near Whole Foods both have pedestrian-initiated signals and crosswalks. Vernon and Lee, in heavily populated Adams Point, has traffic-calming sidewalk “bulb-outs” and a sidewalk garden to slow cars. Oakland Avenue also has traffic-calming devices.

A recent article from Next City shows some other examples of progressive intersection designs that prioritize pedestrian safety. Oakland, as well as other East Bay cities, would do well to consider adopting or increasing their use of the following:

* A green left turn arrow. These simple signals go a long way in preventing accidents. The article points out that left turns are a leading cause of pedestrian deaths.

* Traffic signals that give pedestrians a head start. Giving pedestrians a few seconds before motorists proceed reduces “conflicts” between pedestrians and turning vehicles according to nonprofit America Walks. The head start could be especially useful at Grand and Macarthur and at Lake Park Drive, both busy intersections for motorists, pedestrians and cyclists alike.

* Lighted crosswalks. The flashing lights alert drivers that a pedestrian is crossing or about to cross. Rumble strips leading up to a crosswalk is another good option.

* More traffic bulb-outs or “neck-downs.” Similar to the Vernon and Lee additions, the bulb-outs slow traffic and help get the elderly and preschoolers to the other side more quickly, as they have less distance to cross.

Oakland is on the right track in promoting walking and biking as modes of travel and as a healthier way of life. Let’s hope they keep putting one foot in front of the other (pun intended!) for pedestrian safety.

What can Oakland do to make our streets safer? Share your thoughts…

Wednesday, October 29, 2014

Proposition 46: Doctors Shouldn’t Get a Free Pass

Update: Sadly, Proposition 46 did not pass, but Consumer Watchdog and many others interested in protecting victims declare that the issue is not dead and will return. Stay tuned...

What was added almost as an afterthought may be one of the most relevant, albeit controversial, provisions of Proposition 46, which Californians will vote on November 4.

The hotly debated ballot measure has received much publicity for its provision to raise the cap on pain and suffering damages in medical malpractice cases from $250,000, a figure set in 1975 with The Medical Injury Compensation Reform Act (MICRA), to $1.1 million. After 40 years, it’s time for a raise.

Prop 46 author Bob Pack also included provisions regarding the mandatory use of the Controlled Substance Utilization Review and Evaluation System (CURES), a prescription drug database that only about eight percent of doctors currently use. The system allows doctors to check a patient’s prescription history in hopes of curbing potential “doctor-shoppers.”

To make the ballot measure more appealing to voters, Pack also added a mandatory drug testing provision. Turns out, that addition is likely the most important element to Prop 46.

The measure requires drug and alcohol testing for doctors. Any positive tests are reported to the California Medical Board. The Board would then suspend that doctor pending investigation and take disciplinary action if the investigation indicated that the doctor was impaired while on duty.

Civil rights advocates make a valid argument that random drug testing invades the medical professional’s privacy rights. But if bus drivers, truck drivers and firefighters have to be tested, why not doctors and surgeons? A significant percent of the general population is predisposed to addiction. An estimated ten percent of business executives struggle with addiction. Doctors are not excluded from those figures. Drug testing could shed the light on dangerous behavior that previously remained hidden from patients and ignored by colleagues. (Addicts are masters at disguising their disease.)

Natasha Minsker, associate director of the American Civil Liberties Union of Northern California, told East Bay Express that the drug-testing program could yield positive results from legitimately prescribed drugs or from marijuana used in a doctor’s off hours. However, Prop 46 advocates note that the California Medical Board could craft regulations to make sure doctors are not penalized for legal prescriptions.

Would you want even the most highly trained surgeon to perform an operation, making precise incisions, with an alcohol- or opioid-induced hangover?

Medical professionals shouldn’t get a free pass.

Vote wisely.

Wednesday, October 8, 2014

Safe Cycling: The Legal Effects of the Three-Feet Rule

As you may know, Vehicle Code Section 21760, aka the Three Feet for Safety Act, took effect last month. The new law requires motorists to give at least three feet when passing cyclists. Sounds simple enough.

But when the road narrows and giving three feet means crossing a double-yellow line, which is illegal, or when other traffic or road conditions make it difficult to comply with the rule, the motorist must “slow to a speed that is ‘reasonable and prudent, and may pass only when doing so would not endanger the safety of the operator of the bicycle’.” This is where things get murky.

This to-pass-or-not-to-pass grey area adds an interesting new element to car-bike cases. As CHP explained to San Jose Mercury News, “the new three-foot rule doesn't mean a driver has to remain stuck behind a cyclist until the road widens. A driver can get closer than three feet and pass but only at a ‘safe and reasonable’ speed.”

Cyclists must also be aware that when five more cars are following then and can’t pass, the cyclists must stop or move to the right to let the cars pass (much like a slow-moving vehicle).

The three feet rule is intended to promote safe cycling. Will it help? We sure hope so. As more people become aware of the law, they will ideally become more mindful when approaching bikes on the road.

In the unfortunate event that a motorist does collide with a bike, discovering whether the motorist violated the law adds another challenge to a personal injury action. The driver must overcome evidence that he or she clearly invaded that three-feet buffer.

The width of bike and auto lanes, as well as the width of the vehicles themselves, will become more important during discovery. Lawyers should be more precise in depositions regarding the distance between the car and the bike. More questions should be asked to establish whether a defendant knew or did not know about the three-foot rule. Plaintiffs’ lawyers should also educate their cyclist clients about the issue before deposition.

If a case goes to trial, we may even see a new jury instruction based on the language of the statute.

If you’ve been side-swiped by a vehicle (a definite three-feet violation!) and sustained significant injuries, call our office for a free consultation. For more information on steps to take following a crash, read this article from NorCal Cycling News. Keep the rubber side down.

Thursday, May 27, 2010

Distracted Drivers Harm Others and Themselves

On September 12, 2008, 25 people lost their lives and another 135 were injured when a packed Metrolink commuter train collided with a Union Pacific freight train in Chatsworth, California. Federal investigators believe that the crash was likely the fault of the train engineer, Robert Martin Sanchez, who also died in the accident. Phone records revealed that Sanchez was sending and receiving text messages in the moments leading up to the crash, causing him to ignore several warning lights and run through a red light before hitting the freighter at a combined speed of 80 miles per hour.

The Chatsworth accident quickly became a national symbol of just how devastating and catastrophic driver distraction can be. According to the National Highway Traffic Safety Administration, 80 percent of all motor vehicle accidents and 65 percent of near crashes are caused by driver distraction. The US Department of Transportation estimates that 6000 people were killed and 500,000 more were injured in 2008 in accidents attributed to distracted drivers.

Effectiveness of Cell Phone, Texting Bans Debatable

The current state response to the problem of driver distraction has been to pass laws banning texting and the use of hand-held cell phones while driving. In California, the ban on using hand-held devices went into effect in July of 2008 (Vehicle Code §23123) while the ban on texting went into effect in January of 2009 (Vehicle Code §23123.5).

These bans, however, present special enforcement issues and may not be as effective at curbing the bad behavior as lawmakers would like. For example, a study released in January 2010 by the Highway Loss Data Institute found that cell phone bans do not correlate to lower accident rates for drivers. The study looked at the crash statistics in four states, including California, after their hands-free cell phone laws went into effect and found that the rate of motor vehicle accidents did not decrease in response to the laws.

In California, the State Highway Patrol has encountered problems with enforcing the texting ban. In the year since the texting ban went into effect, the Highway Patrol has only issued approximately 1,400 citations for violating the statute. In comparison, the Highway Patrol has issued more than 163,000 tickets to drivers caught using hand-held cell phones since that ban went into effect in mid-2008. The low number of texting citations is not because drivers have stopped texting, but because it is so difficult for police officers to catch someone in the act.

Other Reasons Drivers Should Avoid Distractions

So if the law does not convince drivers to stop using cell phones and texting while driving, then what will?

Regardless of a law or regulation prohibiting a distracting activity, there are two important reasons why motorists should avoid distractions while driving:

  • Drivers do not want to be responsible for causing an accident that seriously injuries or kills someone
  • A jury may find a driver who was texting or talking on a cell phone at the time another driver hit him or her partially at fault for the accident, reducing the driver's potential recovery at trial

California is a pure comparative negligence state. This means that a jury will consider the relative fault of both drivers in causing an accident and proportion any damage award according to each driver's percentage of fault. For example, if the jury finds that the plaintiff was 30 percent at fault for the accident, then any compensation the plaintiff receives from the defendant will be reduced by 30 percent. As a result, it is in the defendant's best interests to argue that the plaintiff was responsible for at least a portion of the accident in order to reduce the defendant's monetary liability.

Driver distraction is one of the reasons a jury may find a plaintiff partially at fault for causing an accident. If the plaintiff was talking on a cell phone or sending a text message at the time of the accident, the defendant may be able to successfully argue this activity contributed in some way to the accident. Thus, it is in every drivers' best interests not to participate in an activity that a) may harm someone else or b) handicap their ability to receive compensation for any injuries they sustain in a motor vehicle accident.


Despite the fact that California law prohibits drivers from talking on hand-held cell phones and texting while driving, many drivers continue to engage in both of these dangerous activities. Drivers, however, should be aware of their potential legal liability for doing so, even if they are not entirely to blame for causing an accident.

Thursday, January 21, 2010

The Collateral Source Rule in California Personal Injury Cases

Provided by: David G. Smith, Oakland Personal Injury Attorney

People injured due to someone else's negligence may end up with a reduced award for medical expenses based on what his or her insurance company actually paid for medical care

Consider this scenario: Imagine that you were involved in a major car accident caused by a drunk driver. In this accident you suffered severe injuries requiring major medical care. You brought a lawsuit against the drunk driver and the jury quickly found him or her fully at fault for the accident. The total bill for your medical treatment was $100,000, and your insurer paid $60,000 as payment-in-full based on a contract it has with the hospital. Can the jury hear evidence of the total cost of your medical care? Is the jury permitted to hear evidence of your insurance company's payment? Further, how much are you entitled to recover? The answers to these questions likely depend upon the status of what is known as the collateral source rule.

What Is the Collateral Source Rule?

The collateral source rule is an evidentiary rule; it bars defendants in a personal injury case from introducing evidence of money the plaintiff received from collateral sources. Used in this sense, collateral sources are any people or companies not directly involved in the litigation that may have provided benefits or compensation to the plaintiff for damages he or she suffered in the accident. As the California Supreme Court stated in Helfend v. Southern California Rapid Transit District, "if an injured party receives some compensation for his injuries from a source wholly independent of the [at-fault party], such payment should not be deducted from the damages which the plaintiff would otherwise collect from the [at-fault party]." 2 Cal.3d 1, 6 (1970). Common collateral sources are private health insurers, workers' compensation programs, Medicare and Medicaid.

Under the traditional application of the collateral source rule, the jury would not hear evidence of insurance payments, and any insurance payment would not be deducted from the total expenses. Using the above example, the plaintiff could recover $100,000, despite the $60,000 insurance payment. In Helfend, the California Supreme Court discussed the rationale behind the collateral source rule as being that a defendant should "not be able to avoid payment of full compensation for the injury inflicted merely because the victim has had the foresight to provide himself with insurance." 2 Cal.3d at 10. However, there has been a series of decisions by California Courts of Appeal (from both the First and Third Districts), application of which may change this answer.

Erosion of the Collateral Source Rule in California

In Hanif v. Housing Authority of Yolo County, 200 Cal.App.3d 635 (1988), the court held that the plaintiff was only entitled to recover the amount of money actually paid by Medi-Cal (California's Medicaid plan) on the plaintiff's behalf. As such, it reduced the trial court's award, which exceeded the actual amount paid.

In Nishihama v. City and County of San Francisco, 93 Cal.App.4th 298 (2001), the court again held that the plaintiff was only entitled to recover the amount that her health plan actually paid for her medical care, and not the actual cost of the care, which was higher. Thus, the Court of Appeal reduced the award of expenses for medical care.

Both Hanif and Nishihama stand for the proposition that the entire amount of medical expenses billed by a provider may not be collectible by the injured plaintiff. A later case, Greer v. Buzgheia, 141 Cal.App.4th 1150 (2006), clarified these decisions and held that evidence of the entire amount of the plaintiff's billed medical expenses is admissible as evidence, even though it was more than the actual amount paid by the insurer for the medical care.

Under Hanif, Nishihama and Greer, a defendant may bring a post-verdict motion to reduce the verdict based on the actual amount paid by an insurer for medical care. Using the example in the opening paragraph, under these cases, the defendant would be allowed to move to reduce an award of $100,000 to the plaintiff by $40,000 since the insurer only paid $60,000, and the court has the authority to make that reduction.

Recent Reaffirmation of the Collateral Source Rule in Olsen

As noted by Justice Moore in the recent concurring opinion in Olsen v. Reid, 164 Cal.App.4th 200 (2008), there is no California Supreme Court authority for a post-verdict reduction of an award of medical expenses actually billed based on insurance payments. The Olsen court found that the trial court erred in reducing the amount of medical expenses the jury awarded the plaintiff because it was not clear what was actually paid or if anything was "written off."

In his concurring opinion, Justice Moore warned that by "permitting the posttrial reduction of medical expenses, the collateral source rule has been buried without the dignity of any services or parting words." 164 Cal.App.4th at 204. Justice Moore refused to "jump on the bandwagon" and follow the post-verdict reduction practice, which he believed abolishes the policies behind the collateral source rule. As he noted, under this practice, "[t]he plaintiff who has insurance receives less than her uninsured counterpart, while the defendant benefits from the plaintiff's prudence." Id. at 213.

What does this all mean for an injured person in California? If the jury is allowed to hear evidence of the full cost of medical expenses then it follows that the damage award for pain and suffering will be higher and the injured party can get more money. However, if the courts opt not to heed Justice Moore's warning and instead follow the Hanif/Nishihama post-verdict reduction, the injured person may end up with a reduced award for medical expenses based on what his or her insurance company actually paid for medical care.

Victory From Defeat

Provided by Oakland Personal Injury Lawyer, David G. Smith

Successes From "Take it or Leave it" Offers: In these days of the "take no prisoners" attitude of the insurance companies, the unrepresented plaintiff is at an extreme competitive disadvantage.

Unrepresented plaintiffs do not know how the insurance claims process works, they do not know what is important and what is not, they do not know when to pick their fights, they do not know how to get a personal injury claim in the best posture to resolve, and they do not know what a case is worth. Not only does the insurance adjuster know all these things the unrepresented plaintiff does not know, more importantly, the adjuster knows the unrepresented plaintiff is in the dark and most certainly uses that to his or her advantage.

One of the big hurdles that an injured plaintiff must get over is their own unfamiliarity and distrust of lawyers and the legal system in general. Every lawyer knew when starting out that the public, generally, isn't particularly fond of lawyers. For more than 30 years I have been representing injured plaintiffs, and I am convinced that I and the vast majority of my colleagues do a workmanlike, professional job with a real compassion for our injured clients. We fight a fight on behalf of those not powerful enough to take on the insurance companies to the best of our ability.

With the preceding as my introduction, I want to talk about three recent cases that we were able to resolve successfully. They are not untypical injury claims and other plaintiff injury lawyers can tell you similar stories.

An otherwise healthy 56-year-old woman came to me after having various conversations with the defendant's insurance adjuster for nearly two years. She had been involved in an extremely low impact rear end collision. At the time she was struck she was stopped at a rather unusual intersection which required that she lean forward and look over her steering wheel to make sure it was safe before proceeding. She had a fairly significant amount of medical treatment for a neck injury and she had given the insurance company an authorization to obtain the medical records which they had done. After all the conversations and review the insurance company offered a "take it or leave it" $780.

Since the statute was about to run, we filed suit immediately and served it on the defendant. We went through discovery, non binding arbitration (we got an award of approximately $6,000 which we rejected) and settled the case on the eve of trial for $40,000.

A father of a five-year-old girl came to me after having dealt with an insurance company for approximately two years. His daughter and his wife had been at a retail store one day and the little girl got out of the mother's sight for a short period of time and in the process had come too close to a clothing rack and had sustained an approximate three-inch laceration above her left eye. We felt that the rack in question had an outward edge that was probably sharper and more dangerous that it should have been and since this happened in the children's department we felt there was negligence on the part of the store. For her injuries she went to the emergency room and her laceration was sutured and about 10 days later the sutures were removed. She was left with a scar which certainly was not horribly disfiguring, but she was definitely self conscious about it. In all the negotiations with the insurance company the father received an offer of $2,000 "take it or leave it."

I attempted to resolve the case with the adjuster but when she refused to go past $10,000 we filed suit, got through discovery, got through a failed mediation and settled on the eve of trial for $25,000.

A 55-year-old woman came to me with a history of a serious accident three years before. The defendant in the case had only a $25,000 policy and that was paid to her quickly. She had $25,000 in medical payments coverage under her policy and she had underinsured motorist coverage of $100,000. Grudgingly the insurance company had paid the $25,000 in medical payments coverage and they had also advanced her an additional $5,000 from her underinsured motorist coverage.

In underinsured coverage the insurance carrier gets a credit for any amount paid by the at fault defendant, so preliminarily, the maximum available would be $75,000. From that they would be able to deduct the $5,000 advance. If the total value of the case were $100,000 or less, they could also deduct the medical payments of $25,000 so when I took the case over we were looking at a maximum recovery of $70,000. Prior to my involvement they had offered $15,000 "new money," had sent the case to their lawyers and had told her the $15,000 was "take it or leave it." We settled the case in less than 90 days for the $70,000 maximum.

While these certainly are stories about snatching victory from the jaws of defeat, more importantly I would likely have done as well or better had they come to me right after these injuries occurred. But they were forced to wait years for justice!

I believe the two most prevalent attitudes of the unrepresented plaintiff are their beliefs that the insurance company will treat them fairly when they absolutely will not and that they just do not want to have to hire a lawyer.