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.

Over the past few years the media has been reporting on an alleged conspiracy in our medical legal community involving prominent attorneys, judges, a medical consultant, and doctors.  This scandal has been labeled “Las Vegas’ Medical Mafia”.

It began with a motor vehicle accident where the adverse driver was a federal prosecutor.  Obviously, there are two sides to every story.  The media has concentrated on the medical-legal unethical conduct.  There has been little coverage concerning the interaction between the prosecutors and the auto insurance companies.  Ironically, to date, nobody has actually been convicted.  Some doctors have been given immunity, and one doctor is about to enter a plea bargain with the prosecution.  The details of this proposed plea bargain have recently been made public.

The end result of all this has been detrimental to the already tarnished image of attorneys handling personal injury cases.  Why do these things happen?

Insurance companies on one hand are very concerned with fraud which costs them billions of dollars annually.  They don’t like big verdicts, even though they have almost unlimited resources to defend these cases.  So the insurance industry is motivated to protect their financial interests by setting examples of attorneys, doctors, and consultants who are involved in large verdicts.

On the other hand, zealous representation of personal injury victims sometimes involves going to the absolute limits of what is permitted by the rules of professional conduct.  The closer that an attorney gets to the line, the greater the chance of crossing it.  The more often a medical-legal professional goes to the line, the more blurred the ethical boundary line becomes.

The zealous defense of personal injury claims also involves some danger of crossing ethical boundary lines.  Attorneys for both sides experience anxiety when deciding over how far they can go in the representation and defense of their clients.  Both sides are motivated by ego and financial gain.  In order to win a personal injury case, there must be cooperation between the attorney and his medical witnesses.  How far can this cooperation go before it is labeled collusion?  All this is a part of the war that goes on between accident victims, insurance companies, personal injury attorneys and defense attorneys.

So what do we come away with from all of this?

The bottom-line is that there are many victims of auto accidents that are never fully compensated.  Many victims, years after they have settled their auto accident claim, will need spinal surgery.  There are others perhaps that are overcompensated.  The more medical-legal pressure that is applied in a personal injury case, the greater the risk that one side will cross the line between ethical and non-ethical conduct.

So, both sides of the medical-legal war need to step back and take a good look at what they are doing to bolster their position.  Be cognizant of the ethical limits of zealous representation.  If you believe that the other side is crossing the line, that doesn’t necessarily mean that you also need to cross the line to protect your client’s interests.

We should all be concerned about the damage that the “Las Vegas’ Medical Mafia” cases have done to the reputations of our medical-legal community.  It’s up to us to repair this damage by making sure that our future conduct does not involve any risk of unethical behavior to achieve quality representation of our personal injury clients.  If the “Las Vegas’ Medical Mafia” media coverage has taught us anything, it has more clearly defined the line between professional and non-professional conduct, and has given us some examples of what we should not get involved in while representing our personal injury clients.

The automobile insurance industry in the year 2009 has been negatively affected by our sour economy. The insurance industry warns that, by the end of this year, one out of six drivers will not be covered with automobile liability insurance. As a result of current rising unemployment rates, there has been a stunning rise in the number of drivers who are cutting back, or even dropping their automobile insurance coverage altogether, to save money. Therefore, we are looking at record numbers of uninsured motorist on our roadways across the nation.

Auto liability coverage is required in all states with the exceptions of New Hampshire and Wisconsin. In the past, the percentage of drivers without insurance coverage fell steadily until two years ago when the uninsured rate was 13.8%. But, starting in December of 2007, the uninsured rate spiked to 14.6%. The forecast is that the uninsured rate will be 16.1%, by the end of this year. This equates to 33 million licensed drivers across the country without any automobile insurance coverage, based on figures compiled by the Federal Highway Administration.

This phenomenon of increasing uninsured motorists is directly attributable to our challenging economy. An increase in unemployment of 1% results in an increase in uninsured motorists rate of more than three quarters of a percentage point. Many drivers who are unemployed cannot afford to maintain the minimum liability coverage required by state law. Food and rent become the primary financial concerns for these individuals. The average cost of an auto insurance policy was $72.25 per month ($867.00 annual premium) in 2007.

Uninsured motorists can face legal fees, fines, and penalties such as a suspension of their driver’s license. If they injure someone in a liability accident, they may be forced to file for bankruptcy. When economic pressures are high, uninsured motorists appear to be willing to accept these risks.

Obviously, it’s a bad idea to cut back on your auto insurance coverage during an economic recession. In fact, during economic recession, it is logical to increase your uninsured motorist and underinsurance coverages to protect yourself and others you care about. See my earlier post on UM/UIM Coverage.

The global financial crisis has negatively affected auto insurance companies. The reduced demand for auto insurance during the current financial crisis will result a very turbulent 2009 for the auto insurance industry. They may be required to raise their rates.

Grim economic times usually result in increased claims. People who would never think of filing an insurance claim, are more inclined to do so when they need money.

The current economic crisis has affected the demand for insurance. The reduced demand for auto insurance, results in diminished income to insurance companies. On the investment side, insurers have taken a massive hit. They are receiving much less income on their investments, because they are tied into th e stock market.

One way the insurance industry is reacting to the current recession is by denying more claims. They are also utilizing delay tactics on the settlement of auto accident claims. The more that they delay the more income they can earn in their reserves. They are settling claims for as little as they can. They must cut down the costs associated with litigating auto accident cases. You will see more auto insurance carriers utilizing in-house counsel rather than private counsel to handle auto accident cases to reduce their costs.

Considering all this, it is currently more difficult for your attorney to settle your personal injury accident case for fair and reasonable compensation. I have filed more lawsuits in the last two months on car accident personal injury claims than I ever have in the past. So, don’t blame your attorney, if your case doesn’t settle. Current economics may be directly affecting the settlement of your Personal injury claim.

Some information for this post came from an MSNBC report.