The Letter of The Law: December 2013
IN THIS ISSUE:
FAMILY LAW: Surviving the Holidays During Divorce
EMPLOYMENT: Employer Drives Away From Liability for Employee’s Use of Employer’s Car
PERSONAL INJURY: Pre-Existing Conditions and Future Surgery in Personal Injury Cases
Surviving the Holidays During Divorce
By: Hoang-Anh Zapien, Esq.
It’s that time of the year again. Lights are being put up on rooftops, stores crowd with shoppers buying presents, and holiday planning for family gatherings begin. The holiday season is usually an occasion of festive and happy times. However, for those who are coping with divorce, the effects of separation and loss are magnified as the holiday season approaches.
Although there are no magical tools to help alleviate the stress and pain that one may experience during the holiday season, it is important to keep some things in mind that may help make the holidays bearable, and even enjoyable.
- MAKE NEW RITUALS AND FAMILY TRADITIONS – While you may want to hold on to some of the past traditions, it’s a good idea to create some new rituals with friends and family. Reassure your children that holiday celebrations will continue, but in a different way.
- LISTEN TO YOUR CHILD – Children of divorce often find the holiday season to be a very difficult and stressful time. They are the ones that are being shuffled around between two different families and feeling the stress of their parents. So talk to your children and make the holiday season about what is best for them. Find out how they feel the holiday season should be spent.
- MAKE A SCHEDULE – Decide how the holidays will be divided. Most children of divorce secretly feel the divorce is their fault, so do not give them more reason to feel this way by making your children feel guilty for being with the other parent. Reassure your kids that you will be okay while they are with the other parent, and encourage them to enjoy their time there.
- BE REALISTIC – “Picture perfect” holidays are usually just an illusion. Have realistic expectations about the holiday season, especially the first year after a divorce.
- THINGS GET EASIER – Getting through the holidays is always a difficult task for those going through a divorce, and even after the divorce is over. Remember to take it ONE DAY AT A TIME. It does get easier, it does get better, and eventually it does hurt less.
Do I Have To Let An Employee Take A Medical Leave of Absence
By: Laura C. Hess
You receive a doctor’s note stating that one of your employees is receiving medical treatment, cannot work, and is expected to be unable to work for several months. Do you have to hold the employee’s job open for him?
The federal Family Medical Leave Act (“FMLA”), and its California counterpart, the California Family Rights Act (“CFRA”), require an employer with at least 50 full time and part time employees to hold the employee’s job open up to 12 work weeks, if the employee has worked for the company for at least 12 months. If CFRA leave is for the employee’s own serious health condition, the employee may elect or the employer may require the employee to use any accrued vacation time or other accumulated paid leave, including any accrued sick leave.
Even if the employee does not qualify for leave under the FMLA or CFRA, an employer may still be required to let an employee take a medical leave of absence. This is also true if the employee needs to take an extended medical leave of absence past the 12 week guarantee under FMLA or CFRA.
California’s Fair Employment and Housing Act (“FEHA”) requires employers to make reasonable accommodations for their employees’ disabilities and medical conditions, so long as providing the accommodation does not cause the employer undue hardship. Gov. Code § 12940(m). The obligation to provide reasonable accommodation is an affirmative duty. 2 C.C.R. § 7293.9(a).
“Disability” is broadly construed to include any physical or mental condition which makes performance of a major life activity difficult. Gov. Code § 12926.1(j)(1)(B); 2 CCR§ 7293.6(d). “Working” is considered a major life activity. Gov. Code § 12926.1(c).
If the employee cannot presently perform the essential functions of the job, or otherwise needs time away from the job for treatment and recovery, holding a job open for an employee on a leave of absence or extending a leave provided by the CFRA, the FMLA, other leave laws, or an employer’s leave plan, may be a reasonable accommodation provided that the leave is likely to be effective in allowing the employee to return to work at the end of the leave, with or without further reasonable accommodation, and does not create an undue hardship for the employer. 2 C.C.R. § 7293.9(c).
However, employers are not required to allow employees to take indefinite leaves of absence, where the employee does not know if and when he will ever be able to return to work. Id.
The court looks at several factors in deciding whether it would be an undue hardship for an employer to allow an employee to take a leave of absence as a reasonable accommodation. They include, for instance, the nature and cost of the leave, the company’s ability to pay that cost, the impact on operations, and the number of employees. 2 C.C.R. § 7293.6(r). For instance, if the company is a small, family owned business with only four employees, the company may not have the financial or staffing resources available to allow an employee to take an extended leave.
If the employer can show that the cost of allowing the employee to take leave is an undue hardship, (for instance, the cost of providing the employee with benefits while he is on leave,) the employer is still required to permit the leave of absence if funding is available from another source, e.g., a state vocational rehabilitation agency, or if federal, state or local tax deductions or tax credits are available to offset the cost. In the absence of such funding, the employer should give the employee the option of paying the employer’s portion of the cost of continuing his benefits while he is on leave. 29 C.F.R. pt. 1630 app. §§ 1630.2(p).
If the employer fires the employee because it claims it would be an undue hardship to allow the employee to take a medical leave of absence, the employer risks being sued for disability discrimination, wrongful termination in violation of public policy, and failure to accommodate disability. These claims all carry the risk that the employer may have to pay the plaintiff’s attorney’s fees and costs if the employee wins his case.
Pre-existing Conditions and Future Surgery in Personal Injury Cases
In a personal injury action, whether a Plaintiff has pre-existing injuries and whether a Plaintiff alleges the need for future surgical intervention is relevant to the issue of medical damages in Nevada.
In order to minimize liability exposure for a Defendant, it is important to conduct focused and aggressive discovery on a Plaintiff’s prior medical history to determine if the Plaintiff has any pre-existing injuries. A pre-existing condition is a medical or physical condition that a personal injury plaintiff had prior to the subject accident, related to current claims. See e.g. Grover C. Dils Medical Center v. Menditto, (2005) 121 Nev. 278. A person who has a condition or disability at the time of an injury is not entitled to recover the damages therefor. Nevada Jury Instructions – Civil 2011 Ed. Inst. 5PID.3. However, a plaintiff is entitled to recover damages for any aggravation of such pre-existing condition or disability proximately resulting from the accident. Id.
In defense of a personal injury claim, it is crucial to obtain all of the medical records of a Plaintiff that pre-date the accident for a minimum of five years. The prior medical records should evidence whether or not Plaintiff suffers from a pre-existing condition, and should also provide a history of any past surgical procedures performed. Often, Plaintiff’s attorney will not voluntarily provide this information. As such, prior medical record information should be early on in discovery via interrogatories and requests for production. Defense counsel should also obtain a HIPAA compliant medical records release, and subpoena all prior medical records from any of the Plaintiff’s medical providers.
Another common scenario a Defendant faces is the Plaintiff’s allegation that he or she will require future surgery as a direct result of the alleged accident injuries. In Nevada, in order for a Plaintiff to recover damages for future surgery, a medical expert must testify that the surgery is needed to a “reasonable degree of medical probability.” Banks v. Sunrise Hospital, (2004) 120 Nev. 822.
If a medical expert testifies that one will need future surgery to a reasonable degree of medical probability, then recovery for the costs of the surgery can be had as part of future medical expenses and future pain and suffering.
Therefore, in addition to determining whether a Plaintiff has any pre-existing injuries, the Defense must also conduct targeted, defense-oriented discovery regarding future surgery allegations. If the accident occurred two years prior and the Plaintiff still has not undergone any surgery, the Plaintiff should be cross-examined on this, as the surgery allegations are more credible for Plaintiffs who have actually undergone surgery shortly after incurring accident injuries. The Plaintiff’s reported pain scores on their medical records should be analyzed and used during cross-examination as well. If the Plaintiff’s medical history reports relatively low pain scores of 3-4 out of 10, this too can be used in Plaintiff’s cross-examination. Likewise, any treating physician who recommends surgery should also be cross-examined as to whether there are more conservative treatment options available and whether Plaintiff has actually undergone more conservative treatment prior to opting for surgery.
In summary, minimizing exposure to past and future medical expenses will often translate into lower exposure to lost wage, and pain and suffering allegations. In the case of both pre-existing injury and future surgery allegations, retaining a medical expert to conduct a records review as well as an Independent Medical Examination will also serve to bolster the defense.
News and Events.
Laura Hess and Michelle Philo Appointed to Orange County Woman’s Lawyer Association Board
On Monday, December 9, 2013, Kring & Chung, LLP was a proud sponsor of the Orange County Woman’s Lawyer Association (“OCWLA”) 2014 Board of Officers and Directors Installation and Holiday Celebration.
Partner Laura C. Hess was sworn in as the 2014 President of the Executive Board of Directors. She served on the Board of Directors for five years prior to being President.
Associate Michelle Philo was sworn is a member of the Board of Directors for 2014. Michelle served as Student Representative for two years prior. She was honored with the Everyday Hero Award in recognition for her exceptional commitment to OCWLA and her efforts in planning the OCWLA Annual Gala. The Gala recognizes the organization’s Attorney of the Year and Judge of the Year and serves as the organization’s primary fundraiser for the year.
With over 200 members, OCWLA is one the largest affiliate bars to the Orange County Bar Association. OCWLA is dedicated to the advancement of women in the legal profession and the support of diversity in judicial positions and law firm partnerships. OCWLA has grown to fulfill not just the educational needs of its members, but also the needs of the community at large.
Upcoming Score Seminar – Common Legal Questions For Start-Up Businesses
On January 16, 2014 at 6:00 PM, Michelle Philo will be presenting a seminar regarding questions new business owners may have as to the formalities required to get their business off the ground. This seminar assists the small business owner in determining the best legal structure for their business. In addition, the seminar addresses the common types of contracts small business owners encounter and provides attendees with tips for entering contracts. Finally, the seminar will also touch on protecting the intellectual property of a small business. The seminar will take place at the Fullerton Public Library located at 353 W. Commonwealth Avenue. There is now cost for this seminar.