Monthly Archive for October, 2011

Three Questions To Win Your Wrongly Denied Workers’ Compensation Benefits

It’s probably a safe assumption to say that most people don’t like their jobs.  You have to get up early, you have to wade through endless traffic just to get there, and then once you’re there you have to ACTUALLY do your job.  Hmm . . . it’s probably safe to say that most people don’t like working in general.  But it’s just one of those necessary and unavoidable evils in life that you have to grit your teeth and bear through.  That or, you know, just be homeless.  And that, in essence, is the reason we all work: to make money.  Because the only thing that sucks more that working is being broke.  Well, actually there’s another thing that can suck more than being poor, and that’s being this guy.

Not getting your workers’ compensation paid out by your company’s insurance carrier when you’ve been injured on the job is a nightmare that I wouldn’t wish on my worst enemy.  So I can’t imagine what it was like for Mark Lindquist (linked above) when he was literally impaled by a piece of metal and his company’s carrier, Accident Fund Insurance, refused to pay his medical bill.

Lindquist was a social worker who was caring for his three mentally challenged adult clients when a tornado hit his town in Joplin, MO.  Rather than flee, Lindquist did his duty as a social worker and followed his company’s policy by trying to take his clients to safety.  But he was stopped by a flying piece of metal through his chest and knocked unconscious.  Lindquist’s clients unfortunately died, but Lindquist himself was found buried in rubble by rescue workers and brought in for emergency care.

When he miraculously awoke he learned that he had been in a coma for two months, broken all his ribs and most of his teeth, and had rung up a $2.5 million hospital tab.  Accident Fund Insurance rewarded Lindquist’s valor by denying his benefits, claiming that he was in no greater danger than the general public and therefore didn’t deserved to be covered.

Don’t worry though, Lindquist’s story actually has a happy ending, or at least as happy as it can be considering Lindquist now suffers from memory and motor function loss, as well as the trauma of not being able to save his clients.  Accident Fund Insurance reversed their harsh stance after just one day of media scrutiny and decided to give him the full coverage he was due; but of course they did so without admitting any wrong doing.

But to me, the most ridiculous/scary part of this story isn’t necessarily what happened to Lindquist (as terrible as it was), but rather the fact that his story of workers’ compensation woe isn’t a rare or uncommon occurrence.  Carriers deny their legitimate coverage responsibility to customers all the time.

So what should you do if you find yourself in shoes similar to Lindquist?  Well, if your employer’s workers’ compensation carrier denies your benefits, you have some options to make them correct their mistake.  All you have to do is first ask yourself the following three questions:

1)      Is your injury one that is actually covered by workers’ compensation?

The first thing you need to ask yourself is whether the harm you’ve suffered is actually covered by your WC plan or by state law.  This is an important step in determining whether you were wrongly denied coverage, as an injury that doesn’t fall under this umbrella would obviously leave you without a leg to stand on, so to speak.

The extent of workers’ compensation coverage and laws can vary from state to state and company to company, but there are a few constants that you generally can rely on in figuring out your own eligibility.  Traditionally, injuries that occurred as a result of or in the course of conducting one’s employment duties are always covered by workers’ compensation insurance.  Some examples include: physical injuries and any mental trauma that follows, diseases contracted in the course of working, and injuries that develop slowly over time.  It’s also important to note that it doesn’t matter whether or not the employee themselves are responsible for causing their injury; to be an injury that is covered by workers’ compensation, the only requirement is that it’s truly a work-related injury.

2)      Did the injury happen as a result of employee wrong-doing or misconduct?

Yeah, I know this question seems exactly contrary to what I said above, but there’s actually an important distinction here worth mentioning.  Purely accidental or unintentional injuries are covered by worker’s compensation, even if it’s the employee’s fault.  However, what isn’t covered are injuries that an employee inflicts upon him or herself for the purpose of getting worker’s compensation.  Basically fraud, conduct that goes against company policy, and any other criminal behavior that results in an injury while on the job isn’t covered by workers’ compensation.  So don’t go jumping off bridges just to get an early retirement.

3)      Is the injured party an employee?

Finally, it’s important to note that only employees are covered by workers’ compensation.  Business owners, independent contractors, and unpaid volunteers aren’t covered by workers’ compensation insurance.  In addition, in many states, coverage doesn’t extend to farm, maritime, railroad workers, and even federal employees.  But be sure to read your carrier’s fine print to see how it fits in your case.

As you can probably see, Lindquist’s heroics fit exactly into these parameters and he was still denied his rightful benefits.  He was a social worker who was doing his job by protecting his clients from a tornado and as a result was impaled in the process.  It should’ve been case closed, but it wasn’t.

Insurance carriers can be pretty heartless when it comes to their bottom line.  So the moral here is that if your injury falls into the right place regarding the questions above, don’t be afraid to take your carrier to court and get what’s rightfully yours.  But more importantly, don’t be afraid to get the media involved.  Because the only thing all insurance carriers hate more than paying out benefits is losing money from bad press.

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The Approaching Wave Of Cybersquatting and Internet Scammers Thanks To .XXX

Call me old fashioned, but I don’t like the idea of new domain names, especially when people get to pick whatever words they want to place at the end of their web address.  I grew up with .com and dang it, that’s all I want to see.  An open season on internet domain names will just lead to chaos.

And yes, I’m aware that my lead-in paragraph was a little more obtuse than usual this time, but I assure you there’s a point to be made here.  And that point is about curbing internet misrepresentation.

You may be wondering though how being able to pick whatever internet domain name you can imagine would lead to some form of fraudulent misrepresentation.  Well, the answer is simple: internet traffic redirection, or in this case it would be more apt to call it internet traffic misdirection.  If you’re still uncertain about what I mean, well just sit on your hands and wait until October 28th when the opt-out period for the domain name .xxx comes to an end.

Yes, my point, I know, I’m getting to it, but first just bear with me for a paragraph more so I can lay some background on you before diving into the incoherent future to come for the internet.

Now most of you may already be aware of the current space crisis facing .com domain names.  Basically, they are simply running out and there may soon be a severely insufficient dearth of available and coherent web addresses for newcomers to register in the future.  Much like the Y2K problem we experienced at the turn of millennium, the .com problem was one that most early internet engineers simply couldn’t fathom.  Who could have known that the internet would change our lives like it has and become the multi-billion dollar industry it is today?

So, to remedy the dwindling number of .com web addresses, the Internet Corporation for Assigned Names and Numbers (ICANN), the group in charge of regulating web addresses, decided to open up the domain name spectrum to every Tom, Dick, and Sally looking to carve out their own custom web address online.  And so begins our tale of future woe.

You see, with the domain name spectrum open, cybersquatters, scammers, and information phishers the world over now have new ways to rip off and irritate consumers and legitimate companies alike.  By registering popular web addresses before true owners, cyber thieves and extortionists can redirect those unsuspecting web surfers to their fake and/or unrelated websites for all manner of foolery.  We’re talking everything from identity theft to simply giving people the wrong information they need.  And the .xxx domain name will be the very first wave of web addresses to show us this plan in action.

As you can probably already guess, “.xxx” is a domain name that has been designated for the adult entertainment industry.  Its sunrise period already began on September 7, while general availability begins December 6, where anyone can register a web address with the sexy domain.  However, the problem is that if you own a .com or any other web address domain, your web address name can easily be registered under a .xxx domain.  This could lead to some very embarrassing and/or dangerous situations for website owners and customers if a scammer buys out an identical .xxx web address.

ICANN has allowed those who own a registered trademark on their name to opt their name out of the available .xxx domain name list.  However, this opt-out phase only last until October 28, 2011 and is a feature only available to block out registered trademarks, and even then will only last 10-years before a renewal is required.  If you have a registered trademark and you want it out of the .xxx domains, then I suggest you opt out immediately.

So what can you do if you forget to take your trademark out of the running?  Well, nothing basically.  Even if you have a huge budget for legal representation, winning a domain name lawsuit is nigh impossible if the current holder of the disputed web address holds that address legitimately by the book.

See the chaos now?  Bet keeping web addresses to .com doesn’t seem like that bad of an idea anymore, huh?

Is There a Constitutional Right to Play Loud Music in Your Car?

A lawyer in Florida is making a big issue out of what would ordinarily be a minor annoyance: he was driving to work, and he got ticketed for playing music (Justin Timberlake, in case you were wondering) from his car stereo too loud.

Now, most people would simply pay the (very small, at $73.50) fine, and move on with their lives. But this guy was a lawyer, and has apparently decided that the state of Florida will have to pry his pop music from his cold, dead hands.

He went to court to challenge the ticket. Now, many people challenge tickets for minor traffic violations and related infractions, usually on the grounds that the state can’t prove that they engaged in the conduct they’re accused of. This lawyer, however, is arguing that the very law he was ticketed under is unconstitutional.

The Florida statute makes it an infraction for anyone to play music in their car that’s “plainly audible” at 25 feet or more. The lawyer is arguing that this is an infringement upon his First Amendment right to freedom of expression, and a violation of his right to due process because the law is unconstitutionally vague.

Now, I’m a very strong believer in free speech. When the Supreme Court ruled that Westboro Baptist Church had a right to protest the funerals of American soldiers killed in Iraq and Afghanistan, I reluctantly agreed with the ruling (though I found the conduct of the protesters absolutely repulsive). However, I’m not sure that the right to freedom of speech carries with it a right to make meaningless noise in a manner that seriously disturbs the peace.

After all, free speech generally means the freedom to convey information, or express ideas. Making noise just for the purpose of making noise probably doesn’t count. That’s part of the reason why noise ordinances and laws against disturbing the peace are constitutional.

In this case, the lawyer was playing his music really loud. This blurs the line between noise and expression. However, I think we should err on the side of allowing free expression, and any law that restricts it should be narrowly tailored and as clear as possible, to minimize its impact on speech which is clearly protected by the constitution.

In this case, the law that the lawyer was ticketed under is pretty vague. Furthermore, the statute has an exception for amplified advertisements or political speech. The Supreme Court has repeatedly held that commercial speech (like advertisements) is subject to weaker constitutional protection than other speech. So, any statute which provides more protection to commercial speech than to other forms of constitutionally-protected speech is a major constitutional no-no.

If the Florida Supreme Court ends up overturning this statute, I predict that a lot of pundits will deride it as another example of judicial activism, and the success of another frivolous lawsuit. The fact that the plaintiff is a lawyer will just make it an even juicier target.

This is unfortunate, because I think that this case is far from frivolous. It may seem trivial, but it only takes a trivial violation of a constitutional right to snowball into something more significant. While the actions of this lawyer may seem silly when viewed on their own, it is cases like this that prevent little restrictions of speech from accumulating into big ones.

And it’s not like the lawyer is even arguing that all noise regulations are unconstitutional. That’s not the position I’m taking, either. He’s simply making the valid point that this one happens to be vague and overbroad. If it’s overturned, the state legislature, if it wants to enact a new noise ordinance that’s constitutional, will have to actually put some thought into it this time.

This constitutional violation, like most of them, was probably not the result of a deliberate attempt on the part of the state legislature to deprive citizens of their right to free speech. Instead, it’s simply the result of poor drafting, resulting in a statute that’s so vague that no reasonable person can be sure when they’re violating it and when they’re not, making it unconstitutional.

Ordered liberty requires laws that are clear and well thought out. Sometimes, the only way to ensure that that happens is to have a few sloppily-written laws overturned by the courts.

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DOMA Being Fought on One More Front: Veterans’ Court of Appeals

It seems that LGBT rights in the United States are advancing at a moderate but steady pace. Recently, New York legalized same-sex marriage, becoming the largest state to have done so, and one of the few to have done so through legislation, as opposed to court order. Even more significantly, it passed the State Senate, which had a Republican majority, which is another first.

Also, the repeal of the military’s “don’t ask, don’t tell” policy has taken full effect, and gays and lesbians are now free to serve in the military openly. It’s predicted by many people that this change alone will have a huge impact on advancing the cause of LGBT equality. First of all, by serving openly in the military, a huge swath of society will personally interact with gay men and lesbians, hopefully learning that they are no different from anyone else.

More importantly, however, allowing gays and lesbians to serve openly in the military will also thrust the inequalities they still face into broad daylight. There are many rights and benefits that the spouses of military personnel enjoy, such as on-base housing, health benefits, and others.

However, under the federal “Defense of Marriage Act” (DOMA), same-sex marriage is not recognized by the federal government, or any organ of it (including the military). This has led to a few veterans with same-sex partners suing the Department of Veterans’ affairs, arguing that their same-sex spouses should be entitled to the same benefits as any other military spouse.

Now that gays and lesbians can openly serve in the military, challenges like this are likely to increase in frequency and intensity, and it’s almost guaranteed that DOMA is going to go to the Supreme Court, which will have to rule on its constitutionality.

Now, the Supreme Court could easily hold DOMA to be unconstitutional without finding a constitutional right to same-sex marriage. This is because the federal government has typically deferred to the states on the issue of marriage – the federal government doesn’t perform marriages, individual states do, and the federal government recognizes any marriage that’s valid under the laws of any state. However, DOMA creates a major exception to that rule, barring the federal government from recognizing any same-sex marriage, even if it was performed by a state that allows such marriages.

So, it seems fairly likely that the Supreme Court will hold DOMA unconstitutional to the extent that it bars the federal government from recognizing same-sex marriages that are valid under state law. It doesn’t automatically follow from this that every state would be constitutionally-required to recognize same-sex marriage. Personally, I think it’s highly unlikely that the Supreme Court will find a right to same-sex marriage any time soon. But, I think it’s much more likely that they will overturn DOMA on equal protection grounds, requiring the federal government to recognize same-sex marriages performed under the laws of a U.S. state.

And, frankly, I think such a ruling cannot come soon enough. Now that the law acknowledges what most people have known for years – that gay men and women are just as capable of serving honorably in the military as anyone else – it seems ludicrous that another law would then deny them the legal and financial benefits enjoyed by every other soldier.

Although the current Supreme Court has tended to be very conservative on economic issues, it has actually been fairly progressive on social issues, including gay rights. This means that, for supporters of marriage equality, there is reason for hope.

Currently, however, same-sex marriage remains in a state of legal limbo. There is a patchwork of state laws on the issue of same-sex relationships. Some states provide full marriage rights to same-sex couples. Others (most, in fact) don’t provide any recognition for same-sex partnerships. Some provide alternative arrangements to marriage for same-sex couples, which provide most or all of the rights of marriage, but go under a different name.

However, under DOMA, the federal government does not recognize same-sex marriage. You would think that this isn’t much of a problem, since family law is traditionally the province of the states. But, there are thousands of federal rights and benefits that are associated with marriage, including the right to jointly file federal income taxes, spousal benefits for federal employees, and veterans’ benefits. This creates an incredibly confusing situation. And while the repeal or invalidation of DOMA would not create marriage equality across the country overnight, it would go a long way toward clarifying the legal situation of same-sex couples, and promoting equality.

Stealing Valor: Should The Stolen Valor Act of 2005 Be Put Out To Pasture?

Any of you out there remember Xavier Alvarez?  He’s the reason why politicians are great.  I don’t mean great as in they’re great humanitarians who work to better this world, but rather great sarcastically since they are the epitome of shamelessness.  Because no matter how big the lie that they are caught in, a bad politician never ceases to fight you on every bit of minutiae while ignoring the bigger picture.  And coming soon to a court docket near you, the United States Supreme Court will be reviewing the validity of Alvarez’s minutiae by deciding on the constitutionality of the Stolen Valor Act of 2005.

You see, back in 2007 Alvarez won a seat as a director for Southern California’s Three Valleys Municipal Water District.  After he won the election, Alvarez introduced himself as a retired 25-year veteran United States Marine.  He also told the audience that he was a Congressional Medal of Honor recipient who had received the honor due to getting injured many times by the same person.  You can listen to his original address here.

All fine and dandy, except the problem was that Alvarez never received the Medal of Honor or for that matter, even served in the military.  Alvarez was in fact lying about his service to this country.  And under the Stolen Valor Act of 2005, lying about receiving any congressional military medal or decoration is a crime punishable by six months in prison and/or a fine up to $200,000.

What possessed him to lie like this? Who knows.  Most likely it was to gain favor among voters.  Or maybe it was to keep the lie going since it appears he’s been telling the same story since 2006 when he ran for mayor in Pomona, CA.  Regardless, upon being found out, Alvarez worked out a deal with prosecutors that only a politician would want: Alvarez would plead guilty, but would be allowed to challenge the Stolen Valor Act on the grounds that it violates the First Amendment’s protection of free speech.  I assume he did this because he wanted even more hate mail.

Anyway, the 9th Circuit actually agreed with him in a heavily contested opinion.  Basically, the judges found that the government shouldn’t be able to control what people can and can’t lie about as it would be a prior restraint on free speech.  And as much as I hate to agree with them on this, I think their decision is the only logical answer to give.

Before the hate mail comes flooding into my inbox and the angry mob forms outside of my house, please try to put your torches down for a second and give me a chance to explain.

First, Alvarez’s conduct was clearly despicable and an insult to the brave men and women who fight and die for our country.  This much we can all agree on.  But second, and more to the point, the First Amendment was designed to protect our freedom of expression.  It’s one of our most closely guarded rights and for years it’s been understood by the Supreme Court and law professors everywhere that the Constitution frowns upon governmental restraints on expression.  Such prior restraints are always reviewed under strict scrutiny, a standard that tells us restraints on speech are only allowed when the government has a compelling interest in the restriction and that the government’s actions are narrowly tailored to meet that need because there are no alternatives available.

Here, while we can agree that protecting the sacrifices made by our servicemen and women is a compelling government interest, the Stolen Valor Act isn’t narrowly tailored to serve that need because better alternatives are available.  In fact, a law already exists that protects the same thing; it’s called fraud, which is what Alvarez was also prosecuted for committing.  Hence, the Stolen Valor Act is redundant and ultimately an unconstitutional violation of the First Amendment.

Now I realize some may argue that the First Amendment doesn’t protect false statements of facts such as Alvarez’s comments.  That exception applies much more strongly in the commercial speech context rather than among private individuals.  And with good reason because people say things all the time that they believe are true and later learn were incorrect.  Though this latter scenario doesn’t apply to Alvarez, the Stolen Valor Act blurs the line too much on what can and can’t be considered a constitutional restraint on expression (despite the law’s political popularity).

But that’s just my two cents.  What do you guys think?  Should the United States Supreme Court rule in favor or against the Stolen Valor Act?  Is it a necessary law?