Answers to Frequently Asked Questions About Workers' Comp & Personal Injury Litigation
If you were hurt in a personal injury or workplace accident, you probably have a number of questions about your rights and legal options. Fortunately, Attorney Mark Blane has answers. Browse answers to FAQs here.
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CALIFORNIA EMANCIPATED CHILDREN: What does it mean when a child is considered legally "emancipated" in California? How does this affect a child's injury settlement from an accident in California?
Emancipated Minor Children in CaliforniaUnder California law, if a minor child is legally emancipated from his or her parents, which means that the parents have relinquished control of the minor child and his or her earnings, then the child may be deemed “emancipated” under California Family Code Section 7504.123. In such rare cases, the minor may sue or be sued in his or her own name, and may engage in the court approval process as regard his or her own bodily injury settlement, without appointment of a guardian ad litem (GAL).
You should know, that if a child is emancipated in California, then technically no GAL is needed to be appointed by the California court for that child's bodily injury settlement. However, this is a rare occurrence so it really never becomes an issue. For more information on this, you can call me directly at (619) 813-7955.Legal Research for the above FAQ: Standard California Codes, Family Code Section 7504, Relinquishment of Right to Control Child’s Earnings, Division 12, Part 1, 231. 124 See Jolicoeur v. Mihaly (1971) 5 C3d 565, 582, 96 CR 697, 707, fn. 12.
CALIFORNIA CHILD SEXUAL ABUSE INJURIES: What is the California statute of limitations for legal action for a minor child sexually abused and thereby suffering injuries?
Special Statute of Limitations with Sexual Abuse in the State of California
Generally speaking, any California legal action for an injury to a minor child, either physical or mental, is tolled until his or her eighteenth birthday; meaning that a lawsuit or settlement needs to happen within two years from the date the minor child turns eighteen. However, allegations of sexual abuse while a person was a minor child are subject to a special timeframe for legal action in California. In a legal action for a person over the age of eighteen to recover for sexual abuse that happened while he or she was a minor child, the time for the commencement of the legal action shall be within eight years of the date the person attains the age of majority (eighteen years old) or within three years of the date the person discovers or reasonably should have discovered that psychological injury or illness occurring after the age of eighteen was caused by the sexual abuse, whichever period expires later.
SAN DIEGO CA CHILD MEDICAL INJURY CLAIM: Is there a limitation on legal recovery in a child Medical Malpractice claim? If so, what are the limitations?
Limitations on Recovery in Medical Malpractice Claims for Child Injuries in California
Under California law, there is a statutory “cap” for pain and suffering (noneconomic loss) that is set at a maximum of $250,000 in a medical malpractice legal action against a health care provider. This cap has survived constitutional challenge under California law. Remember— this cap does not apply to economic loss (wage loss, etc.). This cap also applies to adult medical malpractice claims!
SAN DIEGO CHILD ACCIDENT INJURY LAWYER | THE SETTLEMENT RELEASE: If the insurance company sends me the bodily injury settlement release for my child's california accident , and I sign as the parent, can I now enforce the settlement under California law for the benefit of my child?No, you cannot; not until the California Superior Court appoints a Guardian for your child (which can be you if you are the parent, etc.) and approves the settlement. This requires a California child accident attorney to prepare the paperwork and file with the court; then the attorney attends the court hearing to obtain a judge's independent approval of the bodily injury settlement so a court order can be obtained to open a blocked account for the child to deposit the settlement funds. The Guardian will act as a "trustee" for the settlement funds until the child turns 18 years old.
ATTENDING THE IME: Do I have to attend the Independent Medical Exam (IME), and can my San Diego personal injury lawyer attend with me when it is called by the defense attorney?
Yes, and yes!
You have to attend the Independent Medical Exam (IME) under California law one time when it is called by the defense attorney in your case (after your case is filed in California Superior Court). Believe, it is not "independent" in any sense of the word, but you are required to attend.
Second part of the answer is "yes," your San Diego injury lawyer can attend your IME. There are some definite advantages for the lawyer to attend too. You can read about those in the above text link.
CALIFORNIA VEHICLE ACCIDENT "IMPACT FORCES" CAUSING PROPERTY DAMAGE: What is a MIST designated bodily injury claim in regards to a minor impact car accident claim for bodily injuries?Allstate insurance came up with program known as MIST or "Minor Impact Soft Tissue." This means "scorched earth" tactics are utilized on any MIST designated case that has retained an attorney. These cases are usually bodily injury claims that tend to have minor impacts of at least $1,500.00 in property damage or less; these claims are "pigeoned-holed" as being minor soft tissue injury cases without reviewing one single shred of medical evidence.
Impact forces that cause lower property damage are naturally scrutinized more closely by the insurance companies because their odds increase that they can use this evidence against an injured person if their bodily injury claim ever goes to a jury trial. The defense lawyer will exploit the fact that the property damage was low or not visible in front of the jury. By doing so, they second argument is there is no way the person could have been injured as bad as they are claiming.
You will need to retain a lawyer to litigate these types of claim in either upper level court, or file them in California small claims court to obtain fair settlement value.
SWEEP LOGS: What is a sweep log in regards to a California slip and fall, or trip and fall injury case?A sweep log is usually a document maintained by a business owner or retail store that documents the frequency and verification of looking out for hazardous conditions on a flooring surface that may cause a patron or customer to fall injuring themselves. Usually, the business owner will train his or her employees to walk the aisles every 15-30 minutes looking out for debris on the floor, and signing or initialing a log verifying the aisle was free from hazards, or if a hazard is found, take immediate action to clean or sweep up the hazardous condition.
Recent court decisions on some pivotal slip and fall case have shifted the burden to the retail business owner to prove he or she was reasonable in making sure the business premises are safe from danger, etc. The longer a hazard is on a floor the more of a burden the business owner has to show they took reasonable steps to remedy the hazard. A well documented sweep log can help protect the business owner in a legal action for slip and fall bodily injuries.
If you have further questions on California slip and fall injuries, feel free to call me directly at (619) 813-7955.
SUMMARY JUDGMENT MOTION: What is a summary judgment motion , and why is it relevant to my California personal injury case?A summary judgment motion is a legal motion that can be filed by either the plaintiff or defendant in a civil case (after a lawsuit has been filed); with civil injury cases, the defense usually uses this motion as their "weapon of choice" to claim there "is no case to be decided by a fact finder, or jury." Meaning that the injured party has no legal claim because of "x, y, z," or more specifically, the injured party has shown no issue of disputed material fact.
For example, if someone took a drug that caused them injury, and the injured person had no real evidence to show the drug caused him or her injury, then a defense lawyer would file the summary judgment motion asking the judge to dismiss the claim because the injured person has no sufficient evidence to even base a claim to be decided by a jury or judge. Thus, there is no real "causation of injury."
STATUTE OF LIMITATIONS: What is the California statute of limitations for a bodily injury on property caused by a latent defect , or a defect that was not easily seen or noticed by a reasonable person? Can I still sue a builder even if the injury happened years later???
Yes, but you can only sue the builder within 10 years of the building being built due to injuries from a latent defect.
The Statute of Limitations for said action is under California Code of Civil Procedure Section 337.15 which states in part a 10-year statue of limitations for any injury to real property due to latent deficiency. Latent deficiency is defined under the code as a deficiency which is not apparent by reasonable inspection.
If a person is both physically injured due to a latent builder defect, and the property suffers harm to (roof collapse for example), then, an injured person in California can bring legal actions against the builder for not only breach of warranty under a contractual theory, but also under negligence/tort for further damages including non-economic damages (pain and suffering).
Another reason why California builders should build sound structures. The risk of liability can go out 10 years after construction!
NEGLIGENCE: What is the legal term negligence and why is it important in my San Diego personal injury case?
Negligence is a legal term which means a person or entity failed to use reasonable care which led to some other person being harmed.
You need four elements under California law in order to have a "negligence" against an at-fault party. They are as follows:
1. Duty owed by the at-fault party; the at-fault party owed a duty of due care to the injured party (like keeping floors free of debris so customers do not slip and fall, etc.);
2. Breach of that Duty; the at-fault party failed to keep the duty of due care;
3. Causation of Damages; the injured party, because of the breach by the at-fault party, was caused some harm (bodily injuries); see also proximate cause;
4. Actual Damages; the injured party suffered some harm (medical bills, and pain and suffering).
Remember, negligence is an "all or nothing rule" or "four part punch" means means you need all four elements above before you have legal negligence, and thus, a legal claim against an at-fault person or entity.
OCCUPATION OF LAND/PREMISES: What is the difference between an invitee and licensee ? Why would it be important in a California personal injury legal action?A invitee is a person who gives some material benefit to the property owner; a common example is a customer in a store; or a kind neighbor who assists a homeowner (fellow neighbor) in trimming shrubs.A licensee is person who is allowed to enter a piece of property by permission of the owner, but does not provided a material benefit to the property owner. For example, a social guest, or someone allowed to hunt on a piece of land is classified as a licensee.
Of course, any person that does not meet the above criteria and enters a piece of land or property is a trespasser.
What you should know is California law places a stronger showing of an injury legal action when a licensee sues a property owner, as opposed to an invitee suing a property owner. A good injury lawyer can help you navigate your premise liability case. You can also check out my Slip and Fall consumer guide on this website. I give it away for FREE!
PROXIMATE CAUSE: What the heck is proximate cause and why is it important in a California personal injury case???
Proximate Cause is a legal term that refers to an event sufficiently related to a legally recognizable personal injury to be held the cause of that personal injury. California uses two types of causation in the law, cause-in-fact and proximate (or legal) cause (foreseeability).
Cause-in-fact is determined by the "but-for" test: but for the action, the result would not have happened. For example, but for the person falling asleep behind the wheel, the accident would not have occurred.
Proximate Cause (Foreseeability): The most common test of proximate cause under the American legal system and, of course, in California, is foreseeability. It determines if the harm resulting from an action was reasonably able to be predicted...it is usually used in respect to the type of harm. It is foreseeable that throwing a baseball at someone's head could cause the head injury or brain damage for example.
You need to have proximate cause in your personal injury case because without it you do not have negligence - proximate cause (causation) is one element of negligence and you need it in order to have a negligence legal claim. Thus, it is very very important to your California injury case!!
DEATH BENEFITS: If someone dies while on-the-job as the result of a work injury, what would be the death benefits under California workers' compensation should the death qualify for such a claim?If a California worker dies as a result of a work injury, his or her dependents are entitled to a death benefit under California’s workers’ compensation laws. Should the family incur any costs for funeral, then coverage for funeral costs is also included within the death benefit. The specific value of the death benefit will depend on the date of the original work injury, the number of any surviving dependents, and the final analysis goes to whether any of the surviving dependents were totally or just partially dependent on the deceased injured California worker. For any work related injuries that cause the death of a California worker occurring on or after January 1, 2006, the maximum allowable death benefit is itemized as follows:
Number of Dependents:
- One total dependent: $250,000
- Two total dependents: $290,000
- Three or more
Total dependents: $320,000
Remember, the death must be related to a work injury, meaning the death occurred within the course and scope of employment.
AGREED MEDICAL EVALUATOR (AME): Okay, so what is an AME on my California or San Diego work comp case anyway?If you are represented by a work comp attorney in California, an AME is the medical doctor your attorney and the work comp insurance company agree on to conduct the medical examination that will lead to a resolution of your work comp claim.
If you do not have a work comp attorney, then you will use a "Qualified Medical Evaluator" also known as a QME, and not an AME.
QUALIFIED MEDICAL EVALUATOR (QME): So what is a QME in regards to my San Diego or California workers' compensation case?The Qualified Medical Evaluator (QME) is an independent medical doctor certified by the DWC Medical Unit to perform medical evaluations on injured workers. If you are without a work comp lawyer, a QME will evaluation your injury and that report will be used to for the resolution of your work comp claim. If you are represented by a work comp attorney, then your attorney would select an Agreed Medical Evaluator (AME), not a QME.
PERMANENT AND STATIONARY (PS): I keep hearing my California work comp doctor and attorney saying things about a "P & S" report , and they tell me it stands for a Permanent and Stationary medical report, and that it is real important to my San Diego work comp case. What are they talking about?
The term Permanent and Stationary (P&S) refers to a time when your medical condition has reached maximum medical improvement. Meaning you are not getting any worse, and you have reached your best pre-job accident medical condition. And, yes, this is a very important time in your California work comp case because once you are "P&S'ed," a medical doctor can then, at that specific time, assess how much, if any, permanent disability resulted from your work related injury. This report is used to finalize your work comp case. It is a very important time in your case once you reach this stage.
P & S reports also dictate how much reward you will receive in your workers compensation case, in addition, if you were injured on the job but by someone not connected with your employer, you can sue that person or entity and utilize your P & S report at trial before the jury. Especially if you have a high % of impairement to a particular body part or system. A good injury lawyer can help you with this. I use P & S reports all the time when I am suing a third party not connected with my client's employer.
Please note: If your disability is rated under the 2005 schedule you will see the term maximal medical improvement (MMI) used in place of P&S.
ACCEPTED CLAIM: What is an accepted claim in relation to a San Diego work comp case?
FYI: An accepted claim is also called an "admitted claim."
An accepted claim means it is a claim in which the California work comp insurance company agrees your injury or illness is covered by workers' compensation benefits under California law (California labor code). Even if your claim is formally accepted there may be delays or other problems associated with your work comp claim. You should consult with an experienced San Diego work comp lawyer.
APPLICANT: What is an applicant in relation to a San Diego work comp case?
An applicant is the party (you, if you are the injured worker) that opens a claim or case with the San Diego Workers' Compensation Appeals Board (WCAB) office by filing an application for "adjudication of claim."
APPEALS BOARD: What is the Workers Compensation Appeals Board (WCAB)?
This is the place where all things related to a work comp injury get consolidated and reviewed. It administers all things related to a work comp case. This place is also the work comp court with the work comp judges that will help decide your specific work comp case. In California, there is a group of seven commissioners appointed by the governor to review and reconsider decisions of workers' compensation administrative law judges. Also called the Reconsideration Unit. See Workers' Compensation Appeals Board.
If you were injured in San Diego county and have an open workers compensation claim, your work comp case or claim will be administered at the following San Diego address:
Workers' Compensation Appeals Board
7575 Metropolitan Road, Suite 202
San Diego, CA 92108-1402
APPLICANT'S ATTORNEY: What is an applicant's attorney in relation to a San Diego work comp case?
A lawyer that can represent you (the injured worker) in your San Diego workers' compensation case; the word applicant refers to you (applying for work comp benefits) as the injured worker.