Vegas Personal Injury Law Blog

A few weeks ago I had an arbitration hearing involving a motor vehicle accident. Both of my plaintiff/clients were employed as casino dealers. One took 3 days off work immediately following the accident. Both missed some full days of work periodically, and both used early outs because their neck or back pain was aggravated by their fixed posture while dealing. Both clients treated from July into November in the year of the accident. The majority of the client’s wage loss claims involved loss of income related to early outs. Generally, dealers make about 3 times more in tips than their hourly salaries.

In most casinos, if an employee leaves work for pain related to an accident they get a point. The accumulation of 12 points results in termination.

Most casino employees have the option, when they begin a shift, to sign up for an early-out. If the casino isn’t busy the employee who signs up for early-out can leave early without any points, but they loose their hourly salary and their tips for the hours that they miss.

The majority of the arbitration hearing dealt with testimony from the Plaintiff’s involving their wage loss.

The arbitrator did award some loss of income to both Plaintiffs, but did not award the full amount. The arbitrator’s decision expressed concerned about the lack of doctor’s excuses for time missed from work. The arbitrator found this to be problematic. Plaintiffs were not required to produce a doctor’s excuse unless they missed 4 days of work. Neither Plaintiff missed more than 4 days in a row. Both Plaintiffs testified that all of their time off work between July and November was because of accident related neck and back pain.

The defense presented no evidence to counter Plaintiffs’ wage loss claims, except for the argument that Plaintiffs used early outs on occasion before the accident.

Plaintiffs’ medical records were of little help documenting Plaintiffs’ problems at work and contained no doctors excuses.

I would like to discuss the proof issues involved with Plaintiff’s not being compensated for the full amount of their wage loss.

I could find no Nevada cases that involve the elements of a wage loss claim. Therefore, wage loss, like any other item of damages, must be proved by a “preponderance of evidence”.

The Nevada Pattern Jury Instructions involving the preponderance of evidence standard and wage loss are as follows:

“Whenever in these instructions I state that the burden, or the burden of proof, rests upon a certain party to prove a certain allegation made by him, the meaning of such an instruction is this: That unless the truth of the allegation is proved by a preponderance of the evidence, you shall find the same to be not true.

The term “preponderance of the evidence” means such evidence as, when weighed with that opposed to it, has more convincing force, and from which it appears that the greater probability of truth lies therein.”

Source: Eighth Judicial District Court Civil Jury Instructions. Nev. J.I. 3.00 – Burden of Proof; Preponderance Of The Evidence

“In determining the amount of losses, if any, suffered by the Plaintiff as a proximate/legal result of the accident in question, you will take into consideration the nature, extent and duration of the injuries (or damages) you believe from the evidence Plaintiff has sustained, and you will decide upon a sum of money sufficient to reasonably and fairly compensate Plaintiff for the following items:”

Source: Eighth Judicial District Civil Jury Instructions, NEV. J.I. 10.00 – Personal Injury and Property Damage; Introductory.

“Plaintiff’s loss of earnings from the date of the accident to the present and the loss of earnings which you believe the Plaintiff is reasonably certain to experience in the future as a result of the accident.”

Source: Eighth Judicial District Court Civil Jury Instruction NEV. J.I. 10.03 – Personal Injury; Loss of Earnings.

“Whether any of these elements of damage have been proven by the evidence is for you to determine. Neither sympathy nor speculation is a proper basis for determining damages. However, absolute certainty as to the damages is not required. It is only required that Plaintiff prove each item of damage by a preponderance of the evidence.“

Source: Eighth Judicial District Court Civil Jury Instructions NEV. J.I. 10.19 – Personal Injury and Property Damage; Closing Instruction.

California Pattern Jury Instructions give us the following requirements of proof of past lost income:

To recover damages for past lost earnings, [name of plaintiff] must prove the amount of [insert one or more of the following: income/earnings/salary/wages] that [he/she] has lost to date.

Source: CACI 39036 citing “We know of no rule of law that requires that a plaintiff establish the amount of his actual earnings at the time of the injury in order to obtain recovery for loss of wages although, obviously, the amount of such earnings would be helpful to the injury in particular situations.” (Rodriguez v. McDonnell Douglas Corp. (1978) 87 Cal.App.3d 626, 656 [151 Cal.Rptr. 399].)

The BAJI instruction involving past wage loss provide us with the following elements of proof of loss of earnings:

“The reasonable value of working time lost to date.

In determining this amount, you should consider evidence of plaintiff’s earnings and earning capacity, how [he] [she] ordinarily occupied [himself/herself], and find what was reasonably certain to have been earned in the time lost if there had been no injury.

[One’s ability to work may have a monetary value even though one is not employed by another.]

[Also, the reasonable value of serviced performed by another in doing things for the plaintiff which, except for the injury, plaintiff would ordinarily have performed.]

[These are items of economic damage.]”

Source: BAJI 14.11

None of this law on past wage loss requires a doctors excuse as a prerequisite to the recovery of past wage loss.

So, what can physicians do to assist a personal injury patient with verification of past wage loss, so that they can meet the preponderance of evidence standard of proof?

1. Since a doctor’s excuse can be an element of proof for past wage loss, the treating physician should always give the patient a doctors excuse to verify any absence from work, whether the employer requires it or not. The patient should give the doctors excuse to their personnel department, payroll department, or human relations department, so that it becomes a part of their payroll/personnel records.
2. The physician should document any absence from work in his patient’s records by referencing how the patient’s condition prevented them from working and/or how the patient’s condition would be aggravated by the tasks associated with the patients work.
3. Previously, I have written about how “duties under duress” that appear in a patient’s medical records can increase the value of a claim for purposes of computer evaluation utilized by insurance companies. Therefore, the physician should inquire on each visit about how the patient’s condition is affected by work. Are you experiencing pain while working? Have you missed any days/hours of work because of your injuries and associated pain since your last visit? If so, this information should be documented in the medical records. If interim full days are missed the physician should document this in his records. If partial days are taken off work, or if the patient has to leave work early because of their injuries, this should also be documented in the medical records, and the physician should comment on his opinion as to whether this missed time from work was reasonable and consistent with the patients injuries. Obviously, this documentation may take a few minutes to do, but it is extremely valuable in verifying and taking the mystery out proof of past wage loss.
4. The patient should communicate the difficulties he’s experiencing at work to the physician, even if the physician doesn’t ask about it. When the physician asks the question, (“How have you been doing since your last visit?”), the patient should communicate information concerning work duress to the physician. Documentation of wage loss and duress experienced at work is a two way street. The patient should communicate wage loss and work distress information to the physician, and the physician should inquire of the patient about how his work is affecting his injury.
5. Insurance companies don’t like to pay for past wage loss and have been successful in defending wage loss claims because of lack of documentation in medical records. Obviously, if I had wage loss and work distress information in my arbitration clients’ medical records the arbitrator would have been more inclined to award them their entire wage loss claim.

For these reasons wage loss claims are easy to defend. Work distress documentation is also important in documenting pain and suffering. If the physical requirements of a patient’s work affects their accident-related pain and suffering, then documentation of work distress also documents the patient’s pain and suffering.

This is a common sense plan for the verification and documentation of past wage loss. To my knowledge nobody has taken the time to articulate this simple approach to support proof of past wage loss. This article will be disseminated to physicians who deal with personal injury claims. Hopefully, this article will result in the beginning of an improved plan for the documentation of past wage loss by physicians who treat victims of accidents.

You have undoubtedly heard the line that, “A person that represents himself in a legal matter has a fool for a client.”

Are there legal matters that can be handled economically without the direct services of an attorney?

One such legal matter may involve a Power of Attorney.

A Power of Attorney gives authorization to a person to act as the agent or attorney for another.

The person who is given the power to act is the Agent or Attorney-in Fact. The person who grants the authority is called the Principal. An Attorney-in-Fact need not be an attorney at law. A lawyer is someone that graduated from law school. A lawyer is someone licensed to practice law in a particular jurisdiction. An Attorney-in-Fact must be completely honest with and loyal to the principal. This duty is one of good faith and fair dealing and is sometimes referred to as a fiduciary duty. The Attorney-in Fact can be either paid or not paid for his services.

A General Power of Attorney authorizes another person (the agent), to carry on all of your business matters.

A Special, Limited or Specific Power of Attorney authorizes your agent to carry out a particular business transaction.

A Durable Power of Attorney becomes effective when the principal (you) becomes unable to manage your own affairs. It differs from the traditional Power of Attorney that comes into effect upon execution and terminates with your incapacity. The Durable Power of Attorney continues the authority to act beyond your incapacity.

A Durable Power of Attorney is sometimes referred to as a Springing Power of Attorney. It comes into effect when a specific event occurs, such as your physical or mental incapacity. These Durable Powers of Attorney can be used for property management or health care.

Durable Powers of Attorney are inexpensive and create a way to handle your affairs when you become incapacitated. They can eliminate the expensive legal process associated with your friends or family members appointing a guardian in the event of your incapacity. Springing Powers of Attorney can grant specific or general powers to your Agent or Attorney-in-fact.

Generally, Powers of Attorney cannot be drafted to give authority to perform acts such as voting for you in an election of for purposes of changing your will.

All fifty states recognize some version of the Durable Power of Attorney. Generally, Powers of Attorney must be in writing. Although under very rare circumstances oral powers of attorney may be appropriate.

A Health Care Proxy is a power of attorney that assigns to another person the authority to make medical decisions when you become incapacitated and it can be used in conjunction with a Living Will that dictates your wishes and intent regarding the extent of life-saving or sustaining treatment desired by you at the end of your life. A Living Will does not appoint another person to make health care decisions. A Living Will only allows you to express your wishes concerning life-sustaining procedures. Health Care Proxies become effective when your attending physician determines that you lack the capacity to make decisions. Prior to that time, you retain all decision-making rights. You may specify that the power won’t go into effect until a doctor certifies you as mentally or physically incapacitated. You may make the provision that two licensed physicians must certify or agree that your are mentally physically incompetent.

When does a Power of Attorney end? Powers of Attorney generally terminate when you die or become incompetent. You can revoke a Power of Attorney at any time,unless it contains a valid irrevocable clause.

There are many situations where a Power of Attorney can be used:

1. To give someone the authority to manage your financial affairs if you become physically or mentally incompetent.
2. If you are out of a jurisdiction on vacation or on business, and you need to complete a real estate transaction.
3. Allow assets to be transferred from one brokerage account or bank account to another.
4. Grant the authority to your broker to buy or sell securities.
5. Grant the authority to a person to handle banking transactions such as deposit and withdraw funds, if you can’t physically go to the bank.
6. Grant the authority to someone to enter your safe deposit box.
7. Grant authority to a person to handle matters related to government benefits such as social security, to manage and operate your businesses in your absence, to settle insurance claims, to purchase insurance, to handle your debt collection, or to borrow money on your behalf.

What are the general requirements of a Power of Attorney?

1. A Power of Attorney must be witnessed by a notary or some other public officer. Notarization makes it harder for someone to challenge the validity of your signature and allows the document to be recorded for use with real estate transactions.
2. You must be mentally and physically competent to execute a Power of Attorney.

The scope of a Power of Attorney is almost unlimited. For example, I recently had a personal injury client who was involved in a motor vehicle accident with her minor granddaughter. I drafted a Power of Attorney for the mother to grant authority to the paternal grandmother to handle all aspects of her daughter’s personal injury claim, including the authority to obtain court approval to settle the daughter’s claim by way of a Minor’s Compromise Order, which is required by Nevada law to settle a minor child’s accident claim.

My law firm soon will be involved in the practice of virtual law at NevadaLawOnline.com . Virtual law gives clients access to a secure website containing legal forms for various legal matters. Clients can utilize these forms with or without attorney input. For an additional fee clients can have their legal documents reviewed or have their questions answered by an attorney via telephone, e-mail or by teleconference.

As previously mentioned a Power of Attorney may be one of those legal matters that can be done by you without or with limited attorney input.

Between the dates of September 5, 2008 and October 9, 2008 five infants, all under the age of 3 months died from similar symptoms.  Each of the infants lived in a separate building of this Section 8 apartment complex. One infant died in each five of the  separate  buildings of the six-building complex.

All the infants passed away within one week one week of experiencing the first symptoms.

Adults living with the infants experienced skin rash similar in appearance to poison ivy, fatigue and headaches.

It is reported that weird looking flies appeared from the air conditioning ducts.

The pesticide utilized in these buildings possibly contained Bifenthrin. A product sold by Nu-Calgon was used to clean the coils of the apartment air conditioners. The Nu-Calgon product consists of aqua ammonia, diethylene glycol monethyl ether, etheline glycol, n-butyl ether tetrasodium EDTA, caustic soda sodium metasilicate, sodium nitrate, butane and propane (volatile components are butane and propane).

Just prior to Thanksgiving 2008 all of the air conditioning duct work, water heaters and water heater water lines were replaced in these apartment buildings.

Toxic mold, Sudden Infant Death Syndrome and Radon have been ruled out as causes of death.

As revealed by autopsies, common symptoms and pathology  experienced by the infants prior their death were as follows:

Some prospective clients expect the attorney to get all their documentation. This undoubtedly will slow down the progress of their claim. Others are very meticulous and come to initial appointment very prepared. Obviously, this preparation will expedite the successful conclusion of their claim.

This Blog will provide you with valuable information so that you can be fully prepared for your initial consultation with your attorney. Your attorney will be impressed if you provide him with all this documentation at your initial consultation.

1. The Accident Report.

One of the most important documents in assessing the liability aspect of a personal injury claim is the accident report. On auto accident cases, the traffic accident report contains useful information concerning the identity of the involved vehicles and the identity and contact information for the parties for your attorney to report your claim to your insurance carrier and the adverse insurance carrier. It contains information concerning how the accident occurred, the issuance of citations and factors contributing to the occurrence of the accident. This information is helpful to the attorney in determining who was at fault for the accident. It can provide information on comparative negligence. (Sometimes, more than one driver causes an accident.) Contact information of independent witnesses is also contained on the report. Before an adverse insurance company will pay for your property damage, they need to take a statement from their insured and/or driver; and, they need to have a copy of the traffic accident report.

Unfortunately the traffic accident report will not be available from law enforcement agencies in Las Vegas for approximately ten days to two weeks after your accident. If the accident involves a DUI or hit and-run, the report won’t be available until the accident investigation is complete. It may take a month or longer before these reports are available.

Your investigating officer should give you a computer printout that has the identity of the drivers, owners and passengers; and, the names of the auto insurance companies and their telephone numbers of the insurance companies, or the insurance agents or brokers. No addresses or telephone numbers of the drivers are contained on the printout. The is printout also contains the event number which will be helpful to your attorney in obtaining a copy of our traffic accident report, so bring the printout to your attorney.

On premises liability cases, the business owner or managers may complete an accident report. You should always request a copy. If you fill out a statement always request a copy. Most businesses will not give you a copy of their report. In most cases, your attorney will not be able to get a copy of your report until after litigation has been commenced. So, be persistent and assertive about getting a copy of your report. This report is helpful to our attorney for the same reasons that an auto accident report is helpful. Casinos are generally self-insured, so you generally do not find insurance information on premises accident reports.

2. Your notes regarding the accident.

Your notes will contain information concerning the details of the accident, what happened at the accident scene, your symptoms and how they came on, the effect the injury is having on our daily life, witness identity and contact information, license plate numbers and conversations with involved parties. This is why it is important to keep a pen and writing pad in your car. Your notes may contain the names and addresses of your medical providers. You should bring your notes with you to your attorney consultation. I find that most people don’t know or can’t remember which ambulance company transported them the hospital. Your notes may contain this information. Your notes also may contain information about how your body moved during the collision, or may contain a description of any contact your body made with the interior of your vehicle.

3. Photographs.

It’s a good idea to keep a disposable camera in your car in case you’re involved in an accident. Today, almost everyone has a cell phone. Most modern cell phones contain a digital a camera. A picture is worth a thousand words. So, take some photos of your vehicle, and the other vehicles involved in the accident. Take a picture of the adverse driver and his passengers, his license plate, especially if there is an issue concerning who was driving the adverse vehicle, or if the adverse driver decides to leave the scene.

You should also provide the attorney with photos of your visible injuries. Some visible
injuries will dissipate with time. Some may not appear until the next day. (Black and blue marks and swelling). Some injuries, like seat belt injuries, may appear on or near your private parts. These photos, if they have to be taken at the attorney’s office, may be embarrassing to you, or they may be inappropriate to take at the attorney’s office.

4. The Declarations Page of Your Auto Insurance Policy.

This document is something that you get as every six months from your carrier. It is sometimes referred to as a premium renewal notice. This document is helpful into to your attorney in determining what coverages that you have available for the accident, such as med pay, uninsured/underinsurance coverages and collision coverage and the applicable deductible. If you have an umbrella policy bring a copy of that dec page with you. Umbrella policies should provide you with additional uninsured/underinsured coverages. If you reside with any relative that has auto insurance on their vehicle, bring that dec page, because their auto insurance may apply to afford you with additional coverage, especially when your injuries are severe.

5. Your Health Insurance Card.

Your attorney needs to know if your have health insurance available to pay your medical bills. The interplay between your health insurance coverage and your med pay can literally save you thousands of dollars on a n auto accident claim. Also, your health insurance will likely have a subrogation lien associated with the use of your health insurance on an auto accident claim. (Note: some private health policies do not contain a subrogbation clause.) To inquire about subrogation liens, your attorney will needs an address or telephone number, which will be found on your health insurance card.

6. Medical Bills or Records.

You may be given discharge instructions from the hospital. These may contain your patient number or medical records number which will be helpful to your attorney in ordering your emergent bills and records. Bring your prescription receipts. Pharmacies will charge exorbitant fees to produce copies of your prescriptions, so bring these receipts to your attorney.

7. Pay Stub.

If you missed work, or will miss work because of your injuries, your attorney will need this info to verify your wage loss, Your pay stub will contain contact information concerning the entity that processes our payroll. This can be an in-house or an independent company.

8. Clothing or Damaged Clothing.

If you are involved in a slip/trip and fall accident the shoes that you were wearing are an important piece of evidence. Provide your attorney with the shoes of photos of them. These shoes should not be discarded until your claim or case has been completed.

If your clothing was damaged in a slip/ trip and fall or auto accident, this can provide proof concerning the severity of the fall or collision and the location of your injuries.