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Tuesday
Nov252014

Personal Injury: The "Independent" (Defense) Medical Examination Required By Law

Injury Attorney Los AngelesPersonal Injury Attorney

by David B. Bobrosky

(818) 907-3254

 

This is part of a series of blogs that discusses what a client can expect during various stages of a personal injury case. This post addresses what happens when the defense has the Plaintiff examined by a doctor in what is incorrectly referred to as an “Independent Medical Examination.”

 

Any personal injury Defendant has a right to have a Plaintiff examined by a doctor of the Defendant’s choice. The law places two main conditions on the examination:  

  1. The examination may not include any diagnostic test or procedure that is painful, protracted, or intrusive; and

  2. The examination must be conducted within 75 miles of the Plaintiff’s residence.

Personal Injury Medical Exams

Whenever a Plaintiff claims continuing injuries, the Defendant will have the Plaintiff examined by the Defendant's doctor of choice.

The doctor will usually match the same type of doctor that the Plaintiff has been seeing to treat his or her injuries – if the Plaintiff has been seeing a neurosurgeon for example, the Defendant will usually require the Plaintiff to see their own neurosurgeon.

The Defendant may also ask the Court to have the Plaintiff examined by multiple doctors if the Plaintiff has multiple injuries that are being treated in different areas of medicine. Most of the time, the Courts will allow examinations by multiple physicians – especially if the Plaintiff will be calling multiple doctors at trial to testify.

 

A Defense (Not Independent) Medical Examination

This examination has often been referred to as an Independent Medical Examination (IME). However, there is nothing “independent” about it. The physician is not neutral.  S/He is hired and paid for by the defense – usually the insurance company.

The doctor examines the Plaintiff, writes a report and then testifies on behalf of the defense. Usually this is a doctor who has been hired by the insurance company many times, and is an advocate for the insurer. Many of them earn hundreds of thousand dollars to over a million dollars per year working for the defense and testifying against Plaintiffs.

This is usually much more money, for much less time, than the doctor makes in his or her main practice. That is why it is more accurately referred to as a “Defense Medical Examination.”

 

What To Do When the Defense Requires an IME

Insurance Medical ExamIf a Plaintiff's attorney receives a notice to have the Plaintiff examined, the first thing that the attorney will do is ensure the physician is of the same discipline of the doctor that has treated the Plaintiff. If the attorney believes that the examination is noticed properly and will proceed by law, the attorney should respond with a written notice with conditions of the examination.

If the examination is not properly noticed (too many examinations, not a correct medical discipline, too far from the Plaintiff's residence, etc.), an injury attorney can send a written objection. Separate conditions apply to mental examinations, which will be addressed in a future article.

 

Attending the Examination

The Plaintiff should never attend the examination alone.

Some attorneys attend the examination with the Plaintiff. Other attorneys send an “observer” with the Plaintiff – sometimes a nurse or someone else with medical training to record the type of tests performed by the insurance doctor. There are pros and cons to each.

The examination may be audio recorded by either the Plaintiff or the doctor. Whether it’s the attorney or an “observer”, it’s imperative that someone attends with the Plaintiff.

 

At the Defense Examination

The Plaintiff should never fill out any paperwork at the doctor’s office.

There is no requirement to do so, and will only be used against the Plaintiff. Despite the fact that it’s not required, almost every office will attempt to have the Plaintiff complete paperwork.

Either the doctor or a “historian” will take an oral history of the accident and injury. Some attorneys do not allow their clients to give any history whatsoever. Others allow a brief history regarding the specific injury or treatment—just enough to allow the doctor to perform an examination.

During the history and/or examination it is important to remember that no matter how charming the doctor may seem, s/he is an advocate for the defense – with financial incentive to downplay the seriousness of the Plaintiff's injury.

It should go without saying that if the Plaintiff answers questions, the Plaintiff must do so honestly.

The Plaintiff must always put forth 100 percent effort during the examination. S/he may be asked to perform certain physical tests, i.e. bending, squeezing, rotating joints, etc.  Besides it being dishonest not to participate to the best of injury victim's ability, the insurance doctors are trained to spot a lack of effort or attempts to exaggerate or fake pain.

 

Report and Record Review

The Plaintiff's attorney will demand a copy of any report generated by the Defense's doctor. This usually includes the main report of the examination, which should set forth the tests conducted during the examination and any opinions or conclusions reached by the doctor.

Many times, the insurance company will send medical records to the examining doctor to review. The doctor will then also produce an additional report called a Record Review.

In this Record Review, the doctor summarizes the records and comments regarding the treatment of the Plaintiff. It is extremely important to make sure the attorney for the Plaintiff obtains both the Report and the Record Review, as the doctor will often bury most of his/her critiques and important opinions in the Record Review.

Being adequately prepared for the Defense Medical Examination will lead to the Plaintiff’s attorney properly dealing with the Defense doctor at deposition and/or trial. Cross-examining a Defense Doctor will be addressed in a separate blog.

 

David B. Bobrosky is an experienced Personal Injury Attorney. Contact him via phone: (818) 907-3254 or by email: dbobrosky@lewitthackman.com.

 

Disclaimer:
This Blog/Web Site is made available by the lawyer or law firm publisher for educational purposes only, to provide general information and a general understanding of the law, not to provide specific legal advice. By using this blog site you understand there is no attorney client relationship between you and the Blog/Web Site publisher. The Blog/Web Site should not be used as a substitute for obtaining legal advice from a licensed professional attorney in your state.

Friday
Nov072014

Fraudsters Rising: IRS Impersonators Flooding the Phone Lines

Tax Law Certified SpecialistCalifornia Certified Specialist, Tax Law

by Michael Hackman
818.907.3279

 

There seems to be an uptick in phone calls from people claiming to be from the Internal Revenue Service, telling potential victims they owe back taxes and demanding immediate payment.  They threaten lawsuits (or worse) unless the person called makes a payment immediately.

 

Preventing Identity TheftClick the image to hear a typical IRS impersonator's message.The fraudsters are using fake names, usually something common like "John Smith" and providing fake IRS badge numbers. They sometimes seem to know the potential victims' last four social security numbers, adding another false layer of legitimacy.

The Treasury Inspector General for Tax Administration says this latest wave of IRS scams is the largest officials have ever seen. According to an October report by Time Magazine, IRS impersonators have made more than 90,000 phone calls to consumers and have acquired more than $5,000,000.

 

Red Flags: How to Determine When You're Being Scammed

 

So how should you protect yourself? Consider these points when getting a potential call form the IRS 

  1. Tiny Mistakes: The caller says s/he is from Internal Revenue Services – the IRS is a single entity, not plural.

  2. Immediate Payment: The IRS always provides  an opportunity for you to question or appeal the amount you purportedly owe.

  3. Payment Methods: The IRS will not accept prepaid debit cards, nor will they ask you for your credit card over the phone.

  4. Threats: The IRS won't have the police or other law enforcement agency come to your doorstep immediately. People who truly owe large sums in back taxes go to court first. They're not going to turn off your utilities or have you deported.

  5. Communication Methods: The IRS will not send you emails (phishing scams), text messages or use any social media platform to contact you. If you do owe money to the IRS, you'll be notified via U.S. Mail.

 

Protecting Yourself From Scammers

 

There are several steps you can take to safeguard yourself from tax scams. 

  1. California Tax LawDon't answer calls from telephone numbers you don't recognize. Don't click on any links in emails that claim to be from the IRS.

  2. Never give out pin numbers to bank accounts, credit card numbers or social security information. The same scammers may call to congratulate you on having your "loan application" approved, and tell you they just need a little more information.

  3. Be suspicious of any deal that seems too good to be true.  

Report scammers to the Treasury Inspector General for Tax Administration by phone: 1.800.366.4484 or forward suspect emails to: phishing@irs.gov. You can also file a report with the Federal Trade Commission online.

 

Michael Hackman is a Certified Specialist in Tax Law, designated by the State Bar of California Board of Legal Specialization. Contact him via email: mhackman@lewitthackman.com, or via telephone: 818.907.3279 for more information.

 

Disclaimer:
This Blog/Web Site is made available by the lawyer or law firm publisher for educational purposes only, to provide general information and a general understanding of the law, not to provide specific legal advice. By using this blog site you understand there is no attorney client relationship between you and the Blog/Web Site publisher. The Blog/Web Site should not be used as a substitute for obtaining legal advice from a licensed professional attorney in your state.

Monday
Nov032014

Los Angeles County Ballot: "P" is for Parks, Prevention and Protection – or Profligacy?

Litigation Los AngelesEnvironmental Litigation  

Stephen T. Holzer
818.907.3299

 

The only initiative that affects all of Los Angeles County (there are 33 local/city ballot measures and six California propositions), Measure P covers a diverse range of interests.

The full title of Measure P is: Safe Neighborhood Parks, Gang Prevention, Youth/Senior Recreation, Beaches/Wildlife Protection Measure. The initiative seeks to ensure continued funding for these listed concerns via a $23 tax per parcel of land in Los Angeles County.

Proposition P aims to replace the expiring Proposition A, which was approved in 1992. Prop A generated $52M per year. The new measure will generate slightly more ($54M annually) for 30 years beginning July 1, 2015. The funds will be allocated as follows: 

  • 30 percent to maintain and develop open spaces, i.e. trails, mountains, rivers, wetlands and streams;

  • 20 percent to neighborhood parks and park projects, fields, gyms, playgrounds and restrooms;

  • 15 percent to beaches and clean water projects in beaches and parks;

  • 15 percent to maintain or improve existing and future parks;

  • 10 percent to increase parks, open spaces and recreational areas in disadvantaged communities;

  • 5 percent to nonprofit or public agencies that work with youth and seniors, those that plant trees or prevent graffiti, or those that work to increase public access to rivers and streams; and

  • The remaining 5 percent is allocated to administration. 

There seems to be few sources of opposition to Proposition P, but this side includes The Los Angeles Times and The Sierra Club. The editorial board at The Times decries the procedure employed to put P on the ballot, citing a secretive process excluding public hearings or a "needs assessment:"

It's irresponsible to begin divvying up more than $50 million each year without a clear sense of what the county and cities need most and how the money can most effectively be spent.

Additionally, The Times says explanations are needed, particularly regarding: 

  • Whether or not this tax will supplant some work covered by the storm water fee, given that some  Prop P funds are allocated to clean water projects;

  • Whether or not Prop P decreases the need for another parcel tax approved last year for districts around Hollywood Hills and the Santa Monica Mountains (which was also written to replace funds from the expiring Proposition A);

  • The change from a square foot tax formula to a flat per parcel tax. 

Support for Measure P is much greater. Organizations like AARP California, the City of Los Angeles, The Conservation Fund and many others are all in favor of voting yes because: 

  • City, state and federal budgets for parks and recreation has been cut – Prop P provides continuity of funding from an assessment already in place.

  • All funds remain local. The money generated stays in LA County and can only be allocated to the uses outlined in the measure. 

Whether or not Measure P will pass is anyone's guess, as it doesn't seem to be a priority question in polling.

Stephen T. Holzer is an Environmental and Business Litigation Attorney. Contact him directly via email: sholzer@lewitthackman.com, or by phone  at 818.907.3299 for more information. 

 

Disclaimer:
This Blog/Web Site is made available by the lawyer or law firm publisher for educational purposes only, to provide general information and a general understanding of the law, not to provide specific legal advice. By using this blog site you understand there is no attorney client relationship between you and the Blog/Web Site publisher. The Blog/Web Site should not be used as a substitute for obtaining legal advice from a licensed professional attorney in your state.

Friday
Oct312014

Proposition 48: A North Fork in the Road for Tribal Casinos

Litigation Los AngelesEnvironmental and Business Litigation  

Stephen T. Holzer
818.907.3299

 

 

Continuing our series on the 2014 California election ballot, we now turn to Proposition 48, the Referendum on Indian Gaming Compacts.

Tribal Casinos Prop 48

If voters approve the referendum November 4th, Native American tribes may be able to open casinos on properties not owned by the reservations – for the first time in California history. Specifically, approval would permit the North Fork Rancheria Band of Mono Indians (North Fork Tribe) to proceed with building a casino in an economically depressed area of the San Joaquin Valley.  

Essentially, Prop 48 will: 

  • Ratify California Assembly Bill 277: Signed by Governor Jerry Brown in 2013, AB 277 ratified a 2012 compact between California and the North Fork Tribe, as well as a 2013 compact between the state and the Wiyot Tribe.

  • Exempt Compacts from the California Environmental Quality Act (CEQA): AB 277 would give the North Fork and Wiyot tribes an exemption from complying with CEQA, which normally requires a lead agency to obtain an environmental impact report for each project.

Prop 48 a Bad Deal for Some

The opposition to Proposition 48 includes Senator Diane Feinstein, a long list of large and small news publications, various state assembly members and representatives, some grass roots organizations and certain city officials. The essence of the opposition arguments are that: 

  1. Prop 48 breaks the tribes' promises (California Prop 1A) to build casinos only on tribal property.

  2. The North Fork Tribe wants to build a Vegas-style casino in the Central Valley closer to freeways – which could ignite a gold rush for even more casino building.

  3. The state won't benefit, as no gaming revenues will be allocated to California schools, or the general fund. Additionally, Prop 48 won't create new jobs, as the proposed new casino will simply take resources from already established casinos.

  4. A Las Vegas casino operator (Station Casinos) will actually run the proposed facility.

  5. Prop 48 will take away open spaces (the proposed plot for development is 305 acres) and create more air pollution and traffic. Additionally, it could significantly drain California's water supply.

All In for Prop 48

Needless to say, Prop 48 supporters rebut all of the above. On the "yes" side, we find Governor Brown, the Los Angeles Times, the California Democratic Party, several labor organizations, and "all" Madera politicians, government units and Chambers of Commerce. They claim Prop 48 will:

  1. Build on federally-held, historical tribal lands at no cost to California tax payers.

  2. Keep local control of a project that has strong community support.

  3. Benefit the government – revenues will be allocated at the local and state levels, but also with 70 other tribes that do not have casinos. The referendum could create approximately 4,000 jobs.

  4. Keep local control of a community-supported project.

  5. Protect lands in the Sierra foothills and near Yosemite, since the referendum will allow the North Fork Tribe (whose reservation is located in those areas) to develop an off-reservation casino.

  6. Promote self-sufficiency for the tribe.

Playing the Wild Card

Though the support team has the bigger names and organizations going to bat, it's the opposition that is flush with campaign funds: Team Yes raised just under $400K (primarily from Station Casinos), while Team No is closer to $9M (primarily from competing tribes with casinos).

 

Stephen T. Holzer is an Environmental and Business Litigation Attorney. Call his direct line at 818.907.3299, or email him for more information: sholzer@lewitthackman.com.

 

Disclaimer:
This Blog/Web Site is made available by the lawyer or law firm publisher for educational purposes only, to provide general information and a general understanding of the law, not to provide specific legal advice. By using this blog site you understand there is no attorney client relationship between you and the Blog/Web Site publisher. The Blog/Web Site should not be used as a substitute for obtaining legal advice from a licensed professional attorney in your state.

Monday
Oct272014

Prop 47: $950 Difference Between Felony & Misdemeanor

Litigation Los AngelesEnvironmental Litigation  

 

Stephen T. Holzer
818.907.3299

 

California's Proposition 47 raises interesting questions in terms of how much certain crimes will cost law-abiding citizens, vs. how much those crimes financially burden our prison system. If approved by voters, some crimes that were once considered felonies will then be reduced to misdemeanors.

They include: 

  1. Shoplifting or grand theft, if property stolen is valued under $950;

  2. Receiving stolen property, if value of the stolen goods is under $950;

  3. Forgery, fraud or bad check writing, if the forged check, draft or other document amounts to less than $950; and

  4. Personal  use of most illegal drugs. 

Here's what Proposition 47 proposes: 

  1. Classify non-serious, nonviolent crimes listed above will be classified as misdemeanors, unless the perpetrator has prior convictions for rape, murder, gun crimes or specified sex offenses;

  2. Allow approximately 10 thousand prison inmates found guilty of the above felonies to be resentenced;

  3. Require an assessment of those inmates who may be eligible for resentencing to determine whether or not they may or may not pose a risk to the public;

  4. Establish the Safe Neighborhoods and Schools Fund (SNSF).  If Prop 47 passes, the estimated $150-250 million in savings would be appropriated for this fund.

  5. From the SNSF, allocate 25 percent of the money accrued to the Department of Education, 10 percent to the Victim Compensation and Government Claims Board, and the remaining 65 percent to the Board of State and Community Correction. 

Those who oppose Prop 47 tend to align with law enforcement groups. The opposition includes the California Police Chiefs Association, the state District Attorneys Association, and the California Correctional Supervisors Association. Add the California Chamber of Commerce; the state Republican Party; Senator Dianne Feinstein and media groups like the Sacramento, Fresno and Modesto Bees to those that do not endorse this proposal.

Here's why: Many opponents declare the measure has a fundamental flaw – that basing the seriousness of a crime on the value of the property involved could be disastrous. For example, opponents argue stealing a handgun worth less than $950 should not be classified a misdemeanor, since that theft may be a preparatory act to committing a more serious or violent crime. Further, theft of purses, wallets, cell phones, etc. from a victim's body should also not be considered a misdemeanor because of the potential for causing injury during the course of the theft.

The opponents hold the same argument regarding possession of date rape drugs, even if the quantity possessed is small.

Proponents for Proposition 47 do include members of law enforcement, but as individuals rather than whole groups or organizations. Those who recommend voting yes also have the backing of the California Democratic Party, the AFL-CIO, the California Teachers Association, Lieutenant Governor Gavin Newsom, and media organizations like the Los Angeles Times, San Francisco Chronicle, and Orange County Register.

Their reasons for voting yes are that too many people are jailed for relatively minor offenses, prisons are overcrowded, and the state spends too much on running these prisons and not enough on education.

A poll by the Public Policy Institute of California taken in September shows a sampling of 62 percent of potential voters in favor, 25 percent opposed, and 13 percent undecided on Prop 47. 

Stephen T. Holzer is a Business & Environmental Litigation Attorney. Contact him via phone: 818.907.3299, or by email: sholzer@lewitthackman.com for more information.

 

Disclaimer:
This Blog/Web Site is made available by the lawyer or law firm publisher for educational purposes only, to provide general information and a general understanding of the law, not to provide specific legal advice. By using this blog site you understand there is no attorney client relationship between you and the Blog/Web Site publisher. The Blog/Web Site should not be used as a substitute for obtaining legal advice from a licensed professional attorney in your state.

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