How personal injury and workers’ compensation systems work together

March 25, 2020 | 6:00 am


Note: Veteran workers’ compensation attorney James Yoro recently spoke at the Kern County Paralegal Association luncheon about the relationship between workers’ compensation law and personal injury law. Chain | Cohn | Stiles law firm focuses on only personal injury and workers’ compensation cases. Below is a portion of Yoro’s presentation.

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If you have been injured due to the fault of both your employer as well as a third party, then you may be entitled to further compensation from the third party. Since Chain | Cohn | Stiles practices law in both areas, the lawyers and staff are uniquely situated to handle both aspects of these cases.

To explain a little further:

  • A personal injury claim is a civil lawsuit that is pursued and processed through superior, appellate and supreme courts, and is a part of the civil justice system, which allows a person to sue another person or party for damages as a result of negligent conduct that caused certain damages to that person. The outcome and any potential recovery is determined at the end of the case by way of dispute resolution (settlement, mediation, or arbitration) or through litigation (trial). Damages can include:
    • Cost of medical treatment provided and potential future medical needs.
    • Loss of earnings and future earning capacity.
    • Potential loss of consortium.
    • Non-economic damages (typically referred as pain and suffering). Recovery is a fluid process up until a jury verdict is returned and upheld on appeal.
  • A workers’ compensation claim is an administrative claim that is pursued through an administrative process governed by the Workers’ Compensation Appeals Board, and if legal disputes arise, the appellate and supreme courts. It is categorized as an administrative process because the workers’ compensation system was created by statute and designed to be a benefit delivery system. If disputes arise, they are adjudicated by a Workers’ Compensation Appeals Board, and the system can become adversarial. A case can be resolved at any point in the process or it can remain unresolved for many years. A case can be resolved and yet remain open for the provision of certain benefits for the person’s lifetime. If there are no disputed issues as to the legitimacy of a claim, benefits as defined by statute are to be provided without delay. A workers’ compensation formula is applied for employer negligence calculation as applied to total damages, not including recovery. The benefits include:
    • Medical treatment and associated benefits.
    • Monetary benefits.
    • Vocational rehabilitation (that are set and defined by statute)
    • Temporary total disability.
    • Permanent disability.

One rule to note: A workers compensation insurance carrier that has provided benefits to an injured worker who has a personal injury case is not entitled to a recovery of their lien or application of the credit to the extent of their percentage of fault if the employers conduct contributed to the cause of the injury.

To illustrate a couple of examples of how personal injury and workers’ compensation cases work together, here are a few hypothetical scenarios.

 

SCENARIO 1

Ann is a UPS delivery driver, and one day while driving down a Main Street on the way to deliver a package, she is broadsided by a Chevron tanker truck that has gone through a stop sign. Ann suffers serious personal injuries and requires medical treatment including hospitalization, surgery and time off from work to recover.

Ann files a workers’ compensation claim with her employer who is insured for worker’s compensation by Cal. Comp. Ann hires an attorney to pursue a personal injury against Chevron. Cal. Comp. hires an attorney to pursue its subrogation interests and files a complaint in intervention in Ann’s personal injury lawsuit.

At the mandatory settlement conference in the personal injury case, Chevron settles with all parties for $1 million. As of the date of the settlement conference, Cal. Comp. has paid out $150,000 in both medical and monetary benefits to Ann. Because of her level of permanent disability percentage, Cal. Comp. still owes an additional $60,000 and may have to provide her with another surgery that could cost $40,000 in her unresolved workers’ comp. case. Ann nets $550,000 from her personal injury case.

A few questions arise:

  • Who got what and why?
  • Is Ann entitled to get the additional $60,000 that Cal. Comp. owes her and get them to pay for her surgery? Why or why not?
  • What if Cal. Comp. did not hire an attorney and did not file a complaint in intervention and only served a lien on Ann’s personal injury attorney? Then what would Cal. Comp. get? What would Ann get?

 

SCENARIO 2

Ann is a UPS delivery driver. One day while driving down a Main Street on the way to deliver a package, she is broadsided by a converted taco truck that has blown a stop sign. Ann suffers serious personal injuries and requires medical treatment including hospitalization, surgery and time off from work in order to recover.

The owner of the Taco truck is Don Quixote who has a $100,000 auto policy with GEICO. Ann files a workers’ compensation claim with her employer who is insured for workers’ compensation by Cal. Comp. Ann hires an attorney to pursue a personal injury claim against Don Quixote. Cal. Comp. does not hire a subrogation attorney and only sends Ann’s attorney a lien.

Upon presentation of the current medicals on GEICO by Ann’s personal injury attorney, GEICO decides to tender their policy. At the time of the tender, Cal. Comp. has paid out $100,000 in medical and temporary total disability. Its future obligation to Ann is estimated to be another $200,000 with $60,000 to $70,000 estimated for her permanent disability benefit. Cal. Comp. notifies Ann’s personal injury attorney that it wants payment of its lien.

  • What strategies can be employed for Ann’s benefit?

 

SCENARIO 3

Ann is a UPS delivery driver. One day while driving down a Main Street on the way to deliver a package, she is broadsided by a Chevron tanker truck that has blown a stop sign. When the CHP officer interviews Ann, she tells him that as she approached the intersection she saw the Chevron truck out of the corner of her eye, and thought that the truck was going too fast to stop, so she started to apply her brakes but she couldn’t stop in time. Upon inspection, the CHP officer notes that the UPS truck’s brakes are badly worn. Ann suffers serious personal injuries and requires medical treatment including hospitalization, surgery and time off from work in order to recover.

Ann files a workers’ compensation claim with her employer who is insured for workers’ compensation by Cal. Comp. Ann hires an attorney to pursue a personal injury claim against Chevron. Chevron’s attorney obtains the UPS trucks maintenance records and discovers that UPS failed to bring this
particular truck in for its last routine maintenance inspection which was scheduled two months before the accident. Chevron hires an accident reconstruction expert who says that Ann would have had enough time to avoid the accident had the brakes been working properly. Ann’s attorney hires an accident reconstruction expert, who says that it is too speculative to say that Ann would have had enough time to avoid the accident.

As of the date of the mandatory settlement conference for the personal injury case, Cal. Comp has paid out $150,000 in both medical and monetary benefits to Ann. Because of her level of permanent disability percentage, Cal. Comp still owes an additional $60,000 and may have to provide her with another surgery that could cost $40,000 in her unresolved workers’ compensation case. The full damage value of the case is about $1 million. The case settles for $850,000, and Ann nets $540,000.

  • What if anything is Cal. Comp. entitled to recover?
  • Would it make a difference if Cal. Comp. had an attorney?
  • What strategies can Ann’s attorneys use to get the best result for Ann?

 

SCENARIO 4

Ann is a UPS delivery driver. One day while driving down a main street on the way to deliver a package, she is broadsided by a converted Taco truck that has blown a stop sign. Ann suffers serious personal injuries and requires medical treatment including hospitalization, surgery and time off from work in order to recover.

The owner of the Taco truck is Don Quixote who has a $100,000 auto policy with GEICO. Ann files a workers’ compensation claim with her employer who is insured for workers’ compensation by Cal. Comp. Ann hires an attorney to pursue a personal injury claim against Don Quixote. Cal. Comp. does not hire a subrogation attorney and only sends Ann’s attorney a lien.

Upon presentation of the current medicals on GEICO by Ann’s personal injury attorney, GEICO decides to tender their policy. At the time of the tender, Cal. Comp. has paid out $100,000 in Medical and temporary total disability. Its future obligation to Ann is estimated to be another $200,000, with $60,000 to $70,000 estimated for her permanent disability benefit.

Ann’s personal injury attorney discovers that UPS has an Uninsured / Underinsured policy on all of its trucks for $1 million. Cal. Comp. notifies Ann’s personal injury attorney that it wants payment of its lien and credit for any and all recovery that Ann obtains.

  • Is Cal. Comp. entitled to recover its lien and get credit?
  • For how much?
  • What strategies can be employed for Ann’s benefit?

 

While these are hypothetical situations in which personal injury and workers’ compensation law intersect, similar cases are very real. And each case presents its own questions and challenges, ones which the workers’ compensation and personal injury lawyers at Chain | Cohn | Stiles has confronted time and time again.

If you or someone you know is injured in an accident at the fault of someone else, or injured on the job no matter whose fault it is, contact the attorneys at Chain | Cohn | Stiles by calling (661) 323-4000, or fill out a free consultation form at chainlaw.com.

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*NOTICE: Making a false or fraudulent Workers’ Compensation claim is a felony subject to up to 5 years in a prison or a fine of up to $150,000 or double the value of the fraud, whichever is greater, or by both imprisonment and fine.

Sexual harassment in the workplace and the #MeToo Movement

March 14, 2018 | 9:25 am


Chain | Cohn | Stiles workers’ compensation* attorney Beatriz Trejo recently made a presentation in front of the Kern County Paralegal Association focused on ethical obligations to prevent sexual harassment in the workplace, and the #MeToo Movement. Below is a synopsis of that “Minimum Continuing Legal Education” presentation. 

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* Please note: Chain | Cohn | Stiles is no longer accepting wrongful termination and sexual harassment cases *

Preventing sexual harassment in the workplace is an ethical obligation of all employees, in addition to a serious legal issue.

More recently, we have seen uprising of people who have gone public with their stories of sexual harassment, assault and abuse, and systemic sexism. The “Me Too” hashtag campaign has spread virally to denounce sexual assault and harassment, and millions have used the hashtag to come forward with their own experiences.

Below is a timeline of legal and societal landmarks that led to our current state:

  • 1964: The Civil Rights Act of 1964 is passed, which prohibits employment discrimination based on race, color, sex, religion or national origin. It is commonly referred to as “Title VII,” because that’s the part of the act that covers employment. Title VII covers both men and women, but its original intent was to protect women in the workplace. This remains its main emphasis today.
  • 1986: In a landmark decision, the Supreme Court rules that sexual harassment can be sex discrimination prohibited by Title VII. The case of Meritor Savings Bank v. Vinson ruled that speech in itself can create a hostile environment, which violates the law.
  • 1991: The Civil Rights Act of 1991 is passed. Congress modifies Title VII to add more protection against discrimination in the workplace. Among other things, the Civil Rights Act of 1991 allows harassment and discrimination plaintiffs the right to a jury trial in federal court. It also gives plaintiffs the right to collect compensatory and punitive damages for the first time, subject to a cap based on the size of the employer.
  • 1993: Harris v. Forklift Systems is handed down. Here the plaintiff worked as a manager of a company that rented heavy equipment to construction companies. Forklift’s president continually made the plaintiff the target of comments such as, “You’re a woman, what do you know?,” and, “We need a man as the rental manager.”
  • 2004: Facebook is launched.
  • 2006: Tarana Burke uses the term “Me Too” to raise awareness of the pervasiveness of sexual abuse, assault, and harassment.
  • 2006: Twitter is launched.
  • October 2017: Actress Ashley Judd accuses media mogul Harvey Weinstein of sexual harassment. Actress Alissa Milano tweets, “If you’ve been sexually harassed or assaulted write ‘Me Too’ as a reply to this tweet.” Half a million people responded to the tweet in 24 hours. After the tweet, Facebook reported 12 million posts and comments regarding #MeToo. Within 24 hours 45 percent of all U.S. Facebook users knew someone who had posted #MeToo. The stories posted recounted stories in the entertainment industry, sports, politics, military, and law.
  • December 2017: The #MeToo movement “Silence Breakers” are named 2017’s “Person of the Year” by Time Magazine.

Today, we all continue to be protected against harassment under the U.S. Equal Employment Opportunity Commission rules, which state:

Harassment is a form of employment discrimination that violates Title VII of the Civil Rights Act of 1964, the Age Discrimination in Employment Act of 1967, (ADEA), and the Americans with Disabilities Act of 1990, (ADA).

Harassment is unwelcome conduct that is based on race, color, religion, sex (including pregnancy), national origin, age (40 or older), disability or genetic information. Harassment becomes unlawful where 1) enduring the offensive conduct becomes a condition of continued employment, or 2) the conduct is severe or pervasive enough to create a work environment that a reasonable person would consider intimidating, hostile, or abusive. Anti-discrimination laws also prohibit harassment against individuals in retaliation for filing a discrimination charge, testifying, or participating in any way in an investigation, proceeding, or lawsuit under these laws; or opposing employment practices that they reasonably believe discriminate against individuals, in violation of these laws.

Offensive conduct may include, but is not limited to, offensive jokes, slurs, epithets or name calling, physical assaults or threats, intimidation, ridicule or mockery, insults or put-downs, offensive objects or pictures, and interference with work performance. Harassment can occur in a variety of circumstances, including, but not limited to, the following:

  • The harasser can be the victim’s supervisor, a supervisor in another area, an agent of the employer, a co-worker, or a non-employee.
  • The victim does not have to be the person harassed, but can be anyone affected by the offensive conduct.
  • Unlawful harassment may occur without economic injury to, or discharge of, the victim.

Still, harassment continues. In fact, an October 2017 poll by NBC and the Wall Street Journal found the following:

  • 48 percent of women stated that they have received an unwelcome sexual advance or other verbal or physical harassment of a sexual nature at work.
  • 41 percent of men stated that they have observed inappropriate sexual conduct directed to women at work.
  • 63 percent of Americans in October 1991 believed sexual harassment occurred in most workplaces.
  • 66 percent of Americans in October 2017 believe sexual harassment occurs in most workplaces.

But legal remedies to fight against harassment continue to exist as well. Claims may be filed with the Department of Fair Employment and Housing, the Equal Employment Opportunity Commission, and the courts. And if the law is violated, damages, attorneys’ fees, and costs may be ordered.

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If you or a someone you know needs assistance with a potential accident, injury or workers’ compensation case, it’s important to contact an attorney, call the lawyers at Chain | Cohn | Stiles for a free consultation at 661-323-4000, or visit the website chainlaw.com.

To learn more about workers’ compensation associate attorney Beatriz Trejo, click here.

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*NOTICE: Making a false or fraudulent Workers’ Compensation claim is a felony subject to up to 5 years in a prison or a fine of up to $150,000 or double the value of the fraud, whichever is greater, or by both imprisonment and fine.

Veteran Chain | Cohn | Stiles employee named 2016 Kern County ‘Paralegal of the Year’

June 15, 2016 | 9:18 am


Hana Tarin, a veteran paralegal in Kern County and at Bakersfield-based law firm Chain | Cohn | Stiles, has been named the 2016 “Paralegal of the Year” by the Kern County Paralegal Association.

Tarin was honored during a Kern County Paralegal Association awards luncheon on June 9 at the Petroleum Club of Bakersfield.

“I am truly honored to have received this award,” Tarin said. “I am blessed to work for such a great employer and great attorneys who do so much for our clients.”

The award was highlighted in The Bakersfield Californian newspaper, the Kern County Paralegal Association’s “The Paralegal Post magazine,” and also the Kern County Bar Association’s “Res Ipsa Loquitor” magazine.

Hana joined Chain | Cohn | Stiles 20 years ago, and is the medical paralegal on personal injury cases, many of which include complex issues ranging from orthopedic injuries to traumatic brain injuries. Her duties include obtaining medical records and reports, dealing with expert witnesses on cases and writing medical summaries.

“Hana’s ability to identify the needs of cases is second to none,” said Chain | Cohn | Stiles managing attorney David Cohn. “And the time she dedicates to writing summaries saves attorneys valuable time in analyzing expert opinions and preparing for depositions. Her vast knowledge of medical experts up and down the state of California benefits our practice on an everyday basis, and her ability to decipher medical records should qualify her for the name Dr. Tarin.”

This year, Hana has successfully contributed to several high-profile, multi-million dollar cases. She was the medical paralegal in charge of a complex motorcycle amputation accident that included more than a dozen expert witnesses. That case settled recently for $10 million.

She has shown time after time her superior knowledge of the ever-changing issues surrounding the admissibility of medical bills.

“She has been nothing short of a gem in the law office throughout her tenure,” Cohn said.

She is a leader in the office in collecting toys or clothes for the disadvantaged in our community, and fundraising in the office for local nonprofits. She once earned a certificate of recognition for community service from the Kern County Bar Association.

In addition to her stellar work ethic, Hana is the sweetest woman. She never gets upset and never raises her voice, staff and attorneys at Chain | Cohn | Stiles shared.

Her personality is also reflected in her work with clients, preparing them for depositions and always willing to give them the time and day to answer their questions. Numerous clients this year have, in testimonials, relayed their appreciation for Hana, her kindness and patience.

She is extremely good at helping clients after their cases get settled, doing the homework necessary to get them their money, including resolving health care liens, and Medi-Cal and Medicare issues. She works close with structured settlement groups to help clients better arrange the funds they have received.

For her stellar work, Hana been recognized several times before. In 2010, Hana was selected at the Kern County Paralegal Association “Member of the Year” for her dedication to community affairs and the pro bono/teen court. She served as the vice president of Kern County Paralegal Association in 2011-12. She earned her national designation of Certified Legal Assistant (CLA) from National Association of Legal Assistants, and her Attorney Assistant Certificate in Worker’s Compensation Law.

Hana graduated from San Joaquin Valley College with her legal secretary certificate, and completed the Attorney Assistant Program from California State University, Bakersfield.

Hana joins a handful of other Chain | Cohn | Stiles paralegals who have been honored by the Kern County Paralegal Association. Recent “Paralegals of the Year” are as follows (asterisks denote current Chain | Cohn | Stiles employees, while those with the caret symbol are former employees):

  • Hana Tarin (2016)*
  • Cathy McDonel (2015)
  • Dee Fringer (2014)
  • Karen Clemans (2013)
  • Kay Roberts (2012)*
  • Barbara Hass (2011)*
  • Lou Stoker (2010)^
  • Barbara Oldfield (2009)
  • Jennifer Rodges (2008)
  • LeAnn Banducci (2007)
  • Leslie Larson (2006)^
  • Robin Woollomes (2005)
  • Aneta Adams (2004)
  • Barbara Hass (2003)*
  • Lauri Taylor (2002)^
  • Michelle Whitaker (2001)