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April 2018

TheLegalAdvocate.com

MEDICAL MALPRACTICE: The over-prescribing of opioids is deemed an error by some

ELDER CARE: Understanding the scope of power of attorney

WORKERS’ COMPENSATION: All you need to know about repetitive stress and compensation

Distraction dilemma Thousands die annually from distracted driving FAMILY LAW:

MESOTHELIOMA:

SERVICES:

How retirement accounts may factor into your divorce

Traces of asbestos found in some girls’ makeup products

Pre-settlement funding could be your lifeline during lawsuit

Advocates United

The Legal Advocate – April 2018 | 3

T H E N AT I O N A L L AW F I R M

IF YOU NEED TO HOLD SOMEONE RESPO NSIBL E

A whole new perspective on legal news.

April 2018 Issue 5 PUBLISHER Joseph P. Belsito Joe@Belsito.com

MARKETING DIRECTOR Gregory W. Buff Greg@Belsito.com

WRITERS

Motor Vehicle Crashes

Personal Injury

Medical Malpractice

Cindy Donovan Mary Dickinson Steven Houghton Elizabeth Marquette David Nelms Leigia Raines Alyssa Stalzer Rodney Warner

DESIGN Gregory W. Buff Mimi Estes

LEGAL DISCLAIMER

Workers’ Compensation

Wrongful Death

Disability Claims

Call us at 888-208-8105

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NATIONAL POWER LOCAL COMPASSION AdvocatesUnited.com THIS IS AN ADVERTISEMENT: 75 Arlington St./Boston/MA. G. Miller admitted MA/CT only. NY: A. Finkelstein 39 Broadway, NY, NY; LA: Shreveport. Members: J. McCutchen, Fort Smith/AR, A. Finkelstein, NJ, M. Hoffman, 7087 Rivers Ave., Charleston, SC. Prior results do not guarantee similar outcome. Client may be responsible for expenses. No representation is made that the quality of the legal services to be performed is greater than the quality of legal services performed by other lawyers. FREE BACKGROUND INFORMATION AVAILABLE UPON REQUEST. (888) 994-1333. Firm operates as G. Miller Law, LLC in TX, NY, NJ. OH & MS

The Legal Advocate is owned by Belsito Communications, Inc., which is compensated by attorneys for marketing services, including the preparation of articles that provide general information on general legal issues commonly encountered by the public. The Legal Advocate is not a law firm and the content of the articles contained herein are not a substitute for an attorney or law firm. The Legal Advocate does not provide any kind of advice, explanation, opinion, or recommendation to any reader about possible legal rights, remedies, defenses, options, selection of forms or strategies the reader may have. The law is different from jurisdiction to jurisdiction, and may be subject to interpretation by different courts. If you need legal advice for your specific legal issue or problem, you should consult a licensed attorney in your area. The Legal Advocate does not endorse any particular lawyer, law firm, or legal service, nor does it guarantee either the quality of any lawyer, law firm or legal service, or the reliability or accuracy of any of the statements or opinions provided by a lawyer or law firm quoted or referenced in The Legal Advocate. The attorneys referenced or quoted in The Legal Advocate may or may not be licensed in your state. Certain jurisdictions may consider articles in The Legal Advocate to constitute Attorney Advertising. Prior results do not guarantee a similar outcome.

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Business..............................................5 Bankruptcy/Foreclosures/Mods...........6 Criminal ..............................................7 Medical Malpractice.............................8 DWI/DUI........................................... 10 Immigration....................................... 11 Mass Tort.......................................... 12 Elder Care........................................ 13 Mesothelioma................................... 14 Family............................................... 15 Workers’ Comp................................. 16 Nursing Home................................... 17 Personal Injury.................................. 18 Tax.................................................... 20 Education.......................................... 21 Class Action...................................... 23 Employment...................................... 26 Veterans Administration.................... 27 Legal Service.................................... 28 Trending News................................. 24

Crossword........................................ 29 This Month in History........................ 30 Legal Ease Cartoon.......................... 30 Oddball Law...................................... 31

Cover Story

When distracted while operating a motor vehicle, it’s just like driving blind

Letter from the Publisher Thanks for picking up this month’s issue of The Legal Advocate. For those checking us out for the first time, we hope you enjoy the wide variety of subjects we’re reporting on that will likely touch on a subject affecting you, a family member or friend. In our April edition, we take a look at the troubling and, frankly, terrifying topic of distracted driving. With 3,400 distracted driving deaths and 391,000 related injuries reported by the NTSB in 2015, it is truly an epidemic. Our feature “Driving Blind” takes a close look at this dificult subject. Speaking of epidemics, this month The Legal Joseph P. Belsito Advocate also reports on the over-prescribing of opiate medications, and how it is now joe@belsito.com falling into the realm of medical malpractice in some instances. In addition to our wide range of legal topics, you’ll also find interesting and entertaining articles, puzzles and cartoons to enjoy each month. We hope you will become a regular reader. To that end, I’d love to hear your feedback on our magazine as well as suggestions for articles or ways we can improve.

The Legal Advocate – April 2018 | 5

BUSINESS

Put our SBA Loans to work for you. Empire State Bank is an approved SBA lender, dedicated to growing businesses. Borrow up to $5 million. Benefits of SBA Financing include:

n n n n n n n n n

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Plus One “Even if you believe all of your company’s partners or members agree with the decision to add another owner, you should still consult your current agreement to make sure you are following its formalities.” Joseph P. Rones ATTORNEY

What You Need to Know if You’re Considering Adding a Partner to your LLC or Partnership

Cindy Donovan Staff writer Business owners whose businesses have grown, or those who are looking for an influx of capital to help them grow more, may want to add new partners or members to their Limited Liability Companies or partnerships. When doing so, it’s important to ensure other partners or members are on board, that any processes defined in the company’s partnership or operating agreement are adhered to, and that state-specific and/or IRS filing requirements are met. “Even if you believe all of your company’s partners or members agree with the decision to add another owner, you should still consult your current agreement to make sure you are following its formalities. If that document requires unanimous written consent, getting a verbal OK from three out of four current partners isn’t enough,” said Joseph P. Rones with Finkelstein & Partners. “Following the guidelines, you and other partners or members initially agreed to, and documenting your steps and decisions, can help avoid conflict or tension later.”

Members of single-member LLCs who decide to add one or more owners may not have operating agreements in place yet. In that case, adding a member is a good reason to discuss and come to agreement on key decisions including management responsibilities, voting rights and the structure for the organization moving forward. Companies with established operating agreements may want to amend or replace those documents to reflect the members’ or partners’ wishes. Finally, in some cases, adding a new partner or member can also trigger IRS notifications or filings; discussing your plans with your accountant before making decisions can ensure everyone is aware of any potential changes to how business income is reported and taxed. Joseph Rones, who was interviewed for this article, is an attorney at Finkelstein & Partners. If you would like to contact Finkelstein & Parners for more information, please call 877-487-2897.

To learn about how customized financing can help grow your business, contact our business professionals today

Newburgh Branch 68 North Plank Road Newburgh, NY 12550 Phone: 845-561-0003

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To speak with a business specialist, contact:

Brooklyn Branch

JoAnn Puma Libretti

8701 Third Avenue Brooklyn, NY 11209 Phone: 347-695-9040

VP, Business Relationship Manager 347-695-9032 JLibretti@esbna.com

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6 | I The Legal Advocate – April 2018

The Legal Advocate – April 2018 | 7

CRIMINAL

BANKRUPTCY

Credit

CRISIS

Bankruptcy can keep your creditors away with a stay Rodney Warner Staff writer If you’re in over your head financially bankruptcy can stop the water from rising and drain it enough for you to start breathing again. One of the key benefits to bankruptcy is allowing a fresh financial start. Part of that is a stay of collection efforts by creditors. This stop, though it may be temporary, could give you enough time to start to escape the financial deep end you’re in. “People are behind in payments for a reason. They’re laid off, they’ve gotten divorced, their health has worsened and there are big bills to pay,” said Scott Goldstein, a New York City area attorney with Allen Chern. “When a stay happens, they don’t need to be so wrapped up in paying off these debts. They can take a breather and decide how to get their life back together.” There are two personal bankruptcy options, Chapters 7 and 13.

A stay under Chapter 13 also stops foreclosure proceedings and it allows you to bring the past-due payments current over a reasonable period of time, though if payments that are part of the payment plan aren’t kept up a foreclosure action can start again or be filed. Under Chapter 7 you would be giving any equity in your home for it to be sold to pay your debts. “A stay is a welcome break for our clients,” Goldstein said. “The phone stops ringing. Collection letters don’t fill the mailbox. Collection lawsuits come to a stop. With a major source of stress put on hold debtors can plan their future, see what is and isn’t financially possible and get their lives back.” Scott Goldstein, who was interviewed for this article, is an attorney with Allen Chern. If you would like to contact Allen Chern for more information, please call 855-466-3961.

• Chapter 7 involves selling your assets to pay off your secured creditors (those who use your property as collateral) then pay what’s left to unsecured creditors. Obligations, other than those exempted by the law like child support or back taxes, are discharged. • Chapter 13 isn’t as drastic as Chapter 7. A Chapter 13 bankruptcy, also called a wage earner’s plan, allows those with regular incomes to develop a plan to repay all or part of their debts. Debtors propose a repayment plan to make installments to creditors over three to five years. Filing a Chapter 7 or 13 petition automatically stays (or stops) most collection actions against you or your property, with some exceptions and the stay may only be temporary. The stay doesn’t require any action by the court. Creditors generally can’t start or continue existing lawsuits, wage garnishments or collection efforts like phone calls.

“People are behind in payments for a reason. They’re laid off, they’ve gotten divorced, their health has worsened and there are big bills to pay.” Scott Goldstein ATTORNEY

n i a Rem t n e Sil

Miranda warnings – when they are required and what they protect Leigia Raines Staff writer “You have the right to remain silent…” The odds are good that you recognize the first line of your “Miranda warnings,” and probably know what comes next, thanks to the saturation of police dramas in Hollywood. “It’s in your best interest to know when they apply and to understand the rights included in a Miranda warning so that those rights can protect you as intended,” said Vince Imhoff, attorney and managing director with Imhoff & Associates. A “Miranda warning” refers to a collection of your Constitutional rights that law enforcement officers are required to advise you of under certain circumstances. Named for the case that established the need for a law enforcement officer to provide the warnings, Miranda v. Arizona (1966), there is a considerable amount of confusion among the general public as to when a Miranda warning must be given and exactly what the rights contained therein mean. “Most people are under the impression that a Miranda warning is always required when there is an interaction with a law enforcement officer; however, that is not the case,” said Imhoff. “A law enforcement officer is only obligated to advise you of your rights if you are taken into custody, and even then, only if the officer wishes to question you,”

“A law enforcement officer is only obligated to advise you of your rights if you are taken into custody, and even then, only if the officer wishes to question you.”

Vince Imhoff ATTORNEY

The law does not specify the words that must be used in a Miranda warning which is why you will hear slight variations from one jurisdiction to another. A typical warning includes the following: • You have the right to remain silent.

• Anything you say may be used against you in a court of law. • You have the right to consult an attorney before speaking to the police and to have an attorney present during questioning now or in the future. • If you cannot afford an attorney, one will be appointed for you before any questioning if you wish. The underlying goal is to ensure that a suspect is aware of his/her rights under the 5th and 6th Amendments, specifically the right to remain silent and the right to counsel during a custodial interrogation. “Another area of confusion, however, with regard to Miranda warnings is found in the mistaken belief that the State must dismiss the case against you if the police failed to advise you of your rights,” Imhoff explained. “The proper legal remedy though, is to exclude anything you said during questioning from being introduced at trial if you were not advised of your rights prior to that questioning taking place.” Vince Imhoff, who was interviewed for this article, is a criminal defense attorney and managing director with Imhoff & Associates, PC. Imhoff licensed in Illinois, California, and Pennsylvania only. If you would like to contact Imhoff & Associates for more information, please call 888-445-6219.

Would you like more information? Visit us at TheLegalAdvocate.com

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MEDICAL MALPRACTICE

Dangerous DUO

How opioids and medical malpractice mix

Instead of getting to the root cause of pain, doctors just prescribed these highly addictive drugs to treat the symptoms,” said Kenneth Fromson, an attorney with Advocates United.

But while some types of medical errors may clearly give rise to a malpractice claim, the question of whether an individual doctor committed malpractice by deciding to prescribe potentially addictive medication can be much more nuanced. To prevail in a claim of medical malpractice, a plaintiff needs to show both negligence and injury; a doctor’s good-faith testimony that he or she was acting within the scope of recommended treatment can be a strong defense to liability.

Opiate addiction alone can sometimes be grounds for a malpractice claim, even without any direct physical complications of opiate abuse. “Because states have a tight statute of limitations for medical malpractice claims, it can be tough to show that a claim was brought in a timely manner, especially if the prescription that started the problem was written years ago,” said Fromson. But this statute of limitations can sometimes be extended, or “tolled,” so that it only begins running when the patient first learns about his or her injury.

Mary Dickinson Staff writer

Facts on Opioid Addiction: ■ Opioids are a class of drugs that include the illicit drug heroin as well as the licit prescription pain relievers oxycodone, hydrocodone, codeine, morphine, fentanyl and others.

pathologically pursuing reward and/or relief by substance use and other behaviors.

■ Opioids are chemically related and interact with opioid receptors on nerve cells in the brain and nervous system to produce pleasurable effects and relieve pain.

Of the 20.5 million Americans 12 or older that had a substance use disorder in 2015, 2 million had a substance use disorder involving prescription pain relievers and 591,000 had a substance use disorder involving heroin.

Addiction is a primary, chronic and relapsing brain disease characterized by an individual

It is estimated that 23% of individuals who use heroin develop opioid addiction.

■

Source: American Society of Addiction Medicine

ith the number of Americans admitted to emergency rooms for treatment of opioid overdoses hitting an alltime high in 2017, many people have begun to view physicians’ prescriptions for these strong, potentially deadly drugs through the lens of medical malpractice. Across the U.S., the number of active prescriptions for opioid medications like oxycodone, fentanyl, and codeine increased by a staggering 400 percent between 1999 and 2014, even though there wasn’t a corresponding increase in the amount of pain patients reported.

But this doesn’t mean a malpractice claim for overprescribing opioid medication is destined to fail. “In many cases, patients show that their doctor was negligent by failing to do more to diagnose their pain.

And the act of prescribing opioids to someone who already has a documented history of substance abuse disorders can be negligent, especially with the development of a wide range of drug-free pain management methods. Other doctors may find themselves defending against “failure to warn” claims, in which patients allege that they weren’t properly instructed about the risk of addiction or the risk of mixing opiates with alcohol.

“Because states have a tight statute of limitations ... it can be tough to show that a claim was brought in a timely manner, especially if the prescription that started the problem was written years ago.”

Kenneth Fromson ATTORNEY

Kenneth Fromson, who was interviewed for this article, is an attorney at Advocates United. If you would like to contact Advocates United for more information, please call 888-208-8105.

Would you like more information? Visit us at TheLegalAdvocate.com The content of this page is covered by and subject to the Legal Disclaimer found on Page 3 of this edition.

10 | I The Legal Advocate – April 2018

DWI/DUI

The Legal Advocate – April 2018 | 11

Elizabeth Marquette Staff writer

IMMIGRATION

here is a great deal of debate about whether having law enforcement officers wait near bars so they can arrest intoxicated patrons when leaving in a vehicle qualifies as entrapment.

The answer is, no. Nor is it entrapment when they set up sobriety checkpoints. “The only way for you to make a successful claim for entrapment, in a situation like this,” says attorney and managing director with Imhoff & Associates, Vince Imhoff “Is if you were coerced into doing something illegal that you would not ordinarily do.” One thing you do have working in your favor, though, is that law enforcement must have a reasonable suspicion of wrongdoing before they can pull you over. Simply leaving a bar is not sufficient suspicion of wrongdoing. However, if the officer follows you and you make a minor traffic infraction, he then has cause to pull you over and can, at that time, investigate whether you may be driving under the influence or not. If you committed no traffic offense and were pulled over, then any evidence discovered after being wrongfully pulled over is inadmissible in court. This means it cannot be used against you and the charges must be dropped.

Road Rules

What’s the difference between sobriety checkpoints and being pulled over for a suspected DUI?

“Your best action is to take advantage of your right to remain silent and contact an attorney with experience fighting DUI Vince Imhoff charges if you’re arrested on ATTORNEY DUI or DWI charges.”

Sobriety checkpoints are different, though. Because they are stopping everyone traveling on a given road, there is no discriminatory act and the supreme court has ruled that they do not involve egregious degrees of intrusion on individual rights to mobility. Since they are legal, and the U.S. Supreme Court has deemed them acceptable, these sobriety checkpoints are a fact of life you must deal with when driving today. Keep these things in mind before you get stopped at a sobriety checkpoint. • Officers can only search for evidence that is in plain sight. That means items sitting on your seats or in plain view through the windows of your car. Don’t have open containers or other questionable items on full display. • If you have tail lights out, expired tags, etc., an officer has probable cause to search more thoroughly for evidence of wrongdoing. • You have a right to remain silent. Use it. • If an officer asks you to take a field sobriety test, ask if it is mandatory or if your driving privileges will be revoked for refusing to comply. You don’t have to “testify” against yourself, but in some jurisdictions, you may be required to take a field sobriety test. According to Imhoff, “Your best action is to take advantage of your right to remain silent and contact an attorney with experience fighting DUI charges if you’re arrested on DUI or DWI charges.” Vince Imhoff, who was interviewed for this article, is a criminal defense attorney and managing director with Imhoff & Associates, PC. Imhoff licensed in Illinois, California, and Pennsylvania only. If you would like to contact Imhoff & Associates for more information, please call 888-445-6219.

Refugees and Asylum Seekers Come Under Fire From Trump Administration “Individuals who enter as refugees and those granted Rodney Warner Staff writer The Trump Administration hopes to reduce the number of those able to legally immigrate into the country. President Trump has concerns about the identity and background of refugees entering the United States. There are already many security processes in place. However, many people feel it is better to be extra safe than sorry. “Those seeking refugee or asylum status in the United States go through background checks before their status is granted. No system is going to be perfect. That said, our government does a good job in vetting refugee and asylum applicants,” says Frank Massaro, Of Counsel to Jacoby & Meyers for their immigration matters. The U.S. offers asylum, or protection, to those who are forced to leave their home countries due to persecution based on their race, religion, nationality, membership in a particular social group or political opinion. Any foreign national may file for asylum within one year of entering the U.S. or afterward if there’s an “exceptional” change due to extraordinary circumstances. They must prove to an asylum officer they have a credible fear of returning to their home country

asylum while they are here in the United States, are an

• Can show they were persecuted or fear persecution due to race, religion, nationality, political opinion, or membership in a particular social group,

important part of the

• Isn’t firmly resettled in another country, and,

fabric of our nation.”

• Is admissible to the U.S.

Frank Massaro ATTORNEY

and local law enforcement or government officials did nothing to protect them. Some applicants are held at family detention centers in the U.S. The asylum process can take years and involve multiple levels of review. Under U.S. law, a refugee is someone who, • Is located outside the U.S., • Is of special humanitarian concern to the U.S.,

Before being allowed to legally enter the country there’s a background investigation that normally takes years to pass. Refugee agencies obtain information, there are security background checks by U.S. agencies, an interview by the Department of Homeland Security, finger prints are taken and checked against databases to see if the person may be a threat, there’s a medical exam and during this process the person’s background is checked repeatedly if there are doubts about the safety of admitting the person. “Individuals who enter as refugees and those granted asylum while they are here in the United States, are an important part of the fabric of our nation. Many have made great contributions to this country,” Massaro says. Frank Massaro, who was interviewed for this article, is an attorney who is Of Counsel to Jacoby & Meyers for their immigration matters. If you would like to contact Jacoby & Meyers for more information, please call 877-504-9075.

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12 | I The Legal Advocate – April 2018

The Legal Advocate – April 2018 | 13

Epipens, meant to save lives, may have cost seven due to malfunctions

ELDER CARE AND ESTATE PLANNING

Financial

Authority Understanding the scope of Power of Attorney Documents

Rodney Warner Staff writer If you or a loved one is severely allergic to something you may carry with you an EpiPen, an injection device loaded with the hormone epinephrine, to treat a serious, even life threatening, reaction. The injection is done by a spring-loaded so there’s no neeMASS TORT mechanism dle sticking out of it. Federal Drug Administration (FDA) documents show that in the first nine months of 2017 seven people died after EpiPen malfunctions and 35 were hospitalized. “It’s a nightmare situation for a parent. Your child could be dying in front of you and the device that’s supposed to save his life doesn’t work,” said Andrew Finkelstein, an attorney with Advocates United. This isn’t a case where the drug being used was dangerous. The danger was created because in emergency situations the device didn’t work properly and those suffering from potentially fatal allergic reactions couldn’t get the drug they needed. In addition to the deaths and hospitalizations the FDA was notified of 228 device failures. The EpiPen has gotten a lot of bad publicity not only because of these failures but due to its

sudden, dramatic price increase. EpiPens are marketed and sold by Mylan NV, which came under scrutiny in 2016 after the price increased from $50 for a single pen to more than $600 for a two-pack. Congress held hearings, government agencies began inquiries and a rival drug company sued them. EpiPen and EpiPen Jr. failures caused a partial recall last year by Mylan. It claims failures of the device are “extremely rare” but FDA records show reports submitted by users show accounts of malfunctions as far back as 2014. Though in 2012 and 2013 there were only a total of 16 reported failures, in 2014 that number increased to 67 and went up to 105 in 2015. Pfizer Inc.’s Meridian Medical Technologies makes the pens loaded with Mylan’s epinephrine. Both companies deny product failures caused the deaths or injuries. FDA inspectors at Meridian’s Missouri plant found the drug leaked out of some of the pens and in some instances the injectors didn’t work properly. It later issued to the facility a warning letter stating they failed to thoroughly investigate EpiPen failures. “Those who need EpiPens shouldn’t have to face a situation where a possibly defective device is the only thing that might save their life,” Finkelstein

“Those who need EpiPens shouldn’t have to face a situation where a possibly defective device is the only thing that might save their life.”

Andrew Finkelstein ATTORNEY

said. “Companies claiming to be able to save lives with their products should be held accountable when their products fail at the most critical moment.” Andrew Finkelstein, who was interviewed for this article, is an attorney at Advocates United. If you would like to contact Advocates United for more information, please call 888-208-8105.

Cindy Donovan Staff writer Giving a trusted family member, friend or professional fiduciary power of attorney over your affairs now, while you have mental capacity, can avoid the need for court proceedings to appoint someone if you later become incapacitated. However, these legal documents should not be signed without having a full understanding of their scope and power. In general, though, powers of attorney can be granted for financial transactions. A health care proxy will allow you to name someone to speak on your behalf if you are unable to make health care decissions for yourself. “While both types of documents are important, financial powers of attorney can be dangerous in the wrong hands,” explained Joseph P. Rones, an attorney with Finkelstein & Partners. “Your agent will have authority over your financial assets and responsibilities, so it is critical to trust that the person or organization you name is going to act in your best interest. While it often makes sense to grant broad authority to someone else, there may be reasons to consider curbing that power, limiting the types of transactions your agent can handle.” It’s also important to understand when your agent has the authority to act. Powers of attorney may be immediate, so your agent has

“Medicaid Because of the nature of these documents, anyone creating a power of attorney should take the time to understand various options and their implications before signing.”

Joseph P. Rones ATTORNEY

authority to manage your affairs the moment you sign the document, or they may be “springing”, taking effect only after a specified event occurs. They may also be durable, meaning your agent will have authority during periods when you are incapacitated or incompetent, or non-durable, meaning that their authority ends at that point.

“In an estate planning context, it generally makes sense to use durable powers of attorney, and to grant broad authority to your named agent, including authority to make gifts on your behalf. But there may be situations where someone may want to limit authority” said Rones. “Because of the nature of these documents, anyone creating a power of attorney should take the time to understand various options and their implications before signing.” Joseph Rones, who was interviewed for this article, is an attorney at Finkelstein & Partners. If you would like to contact Finkelstein & Parners for more information, please call 877-486-7140.

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The Legal Advocate – April 2018 | 15

Asbestos found in girls’ makeup

FAMILY LAW

Products recalled by retailer Rodney Warner Staff writer You may have purchased makeup for your daughter that contains asbestos. The girls’ clothing store chain Justice recalled MESOTHELIOMA eight Just Shine makeup products in January because laboratory tests showed small amounts of the dangerous mineral asbestos. It’s not allowed in some products in the U.S. because exposure to it’s been linked to a number of fatal conditions, including mesothelioma. The affected products were sold from March to June of last year and include: • Just Shine Shimmer Powder • Just Shine Bronzer Brush Just Shine Makeup Palette (11 piece – pinks) • Just Shine Makeup Palette (11 piece – blues) • Just Shine Eye Shadow Palette (5 piece – cool) • Just Shine Eye Shadow Palette (5 piece – pinks) • Just Shine Makeup Palette (9 piece glitter cream)

• Just Shine Eye Shadow Palette (9 piece eye shadow and glitter cream) “The fact that make up used by many of our daughters contains potential deadly asbestos is a reminder of how this mineral is still finding its way into our lives decades after its use in some products was banned in the 1970’s,” said attorney Joe Belluck, who represents mesothelioma victims. The news department at WTVD in Durham, North Carolina, investigated the ingredients of cosmetics marketed to girls and found one of the recalled Justice products, Just Shine Shimmer Powder, tested positive for asbestos. The lab the station used found tremolite asbestos fibers, which contaminated the mineral talc used in the product. If the talc was tested it never should have been used by the manufacturer because the federal Food and Drug Administration bans asbestos-contaminated talc in cosmetics. The lab also

found other toxic materials in Just Shine Shimmer Powder including barium, chromium, selenium and lead. Asbestos fibers have been found in many other talcum powder and cosmetic products. When used, asbestos fibers can be dispersed and find their way into the body, especially into the lungs. The human body isn’t capable of breaking down or eliminating asbestos fibers that are ingested. Over time the fibers can cause mesothelioma, a deadly form of cancer. “Consumers need to be careful about their use of products containing talc because it can be contaminated with asbestos,” Belluck said. “Losing your life to mesothelioma is not worth the benefits of using talc.” Joe Belluck, who was interviewed for this article, represents mesothelioma victims. If you would like more information, please call 877-637-6843.

Broken Eggs How retirement accounts factor into a divorce Lara Sykes Staff writer Divorce can be a messy and emotional process. However, it is vital that you make informed and logical financial decisions when it comes to distribution of marital assets, particularly retirement assets. Depending on your State’s laws and when retirement fund contributions were made, the marital estate can include one or both parties’ retirement accounts. Who owns what?

“The fact that make up used by many of our daughters contains potential deadly asbestos is a reminder of how this mineral is still finding its Joe Belluck way into our lives decades ATTORNEY after its use in many products was banned in the 1970s.”

“Retirement accounts typically represent the largest and most valuable assets a person possesses,” said Jennifer Safier, an attorney with Fine, Olin &Anderman. “Ensuring that they are divided in an equitable way is important to your future financial security.” If you or your spouse have retirement savings in a 401(k), a pension plan, an IRA or another retirement investment vehicle, it is most likely a marital asset. This is true regardless of who acquired the retirement benefits. The amount your spouse is entitled to is governed by state law. How do you divide these assets properly? The problem is, there are often tax implications and

penalties if funds are withdrawn early. You may also be prevented from putting the funds back into a tax-sheltered account if they are withdrawn early improperly. The way these accounts are distributed in a divorce is extremely important in order to avoid penalties and tax ramifications. All pension plans and some IRA and 401(k) plans require a separate court order to be entered simultaneously with or subsequent to a Judgment of Divorce in order to distribute the accounts to the former spouse properly. This court order is known as a Qualified Domestic Relations Order (QDRO, typically pronounced “quad row”) and it preserves the retirement account status thereby protecting both partners’ interest when tax-advantaged retirement accounts are divided. Under a QDRO, the former spouse’s portion of the account is segregated and will be deposited into an account of the former spouse’s choosing. Typically, this will be a Traditional or Roth IRA. The former spouse could also chose to “cash out” the account, but if they do they will suffer the tax ramifications alone.

“Retirement accounts typically represent the largest and most valuable assets a person possesses.” Jennifer Safier ATTORNEY

A QDRO must be pre-approved by the retirement plan’s administrator and then submitted to the court. Most retirement plans have standard QDRO forms that they will provide as a template. Proposed QDROs will typically be prepared and submitted by the attorney who represented you in your divorce. “Have your attorney use the retirement plan’s form as a general guide,” Safier said. “While it is adequate for many people, it may need to be customized for those with special circumstances.” Above all, think of your future security before agreeing to any marital settlement. Legal experts say the worst thing that you can do is give up a retirement account because you do not want the hassle. These assets have many tax advantages, as well as the power to continue to grow over time, ensuring that you have a secure retirement. Jennifer Safier, who was interviewed for this article, is an attorney at Fine, Olin &Anderman. If you would like to contact Fine, Olin &Anderman for more information, please call 855-311-5639.

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16 | I The Legal Advocate – April 2018

The Legal Advocate – April 2018 | 17

Workers’ compensation and repetitive stress injuries:

What you need to know

“Many people mistakenly assume that there has to be some dramatic event or accident to trigger workers’ compensation benefits.”

Vincent J. Rossillo ATTORNEY

Jessica Underwood Staff writer You often go through the same motions over and over again while you are at work. Over time, these repetitive actions can wreak havoc on your body. The human body simply was not designed to do the same thing repeatedly for hours on end. Shoulder, back, hand, and wrist deterioraWORKERS’ COMP tion are some of the most common injuries that result from recurring motion. Some people may attribute these problems to just getting older—but it is actually much more than that. Injuries due to repeated motions at work are work injuries, and you may be entitled to workers’ compensation benefits. Advocates United Attorney Vincent J. Rossillo cautions workers: “Many people mistakenly assume that there has to be some dramatic event or accident to trigger workers’ compensation benefits. But, your right to receive benefits is actually much broader than that.” No single event causes a repetitive stress injury (“RSI”). Instead, it develops gradually over time. In fact, it may take years for you to notice that there is a problem. You may not fully appreciate what caused your issues, either. In some circumstances, it may take getting a medical professional’s opinion to fully understand

what is causing your pain or limiting your activities. Any employee who does the same or similar motions repeatedly during their shift is at risk of developing an RSI. Manufacturing or line workers are particularly prone to RSIs. However, the activity does not have to be strenuous for it to cause an RSI. “You would be surprised how many office workers end up with repetitive stress injuries because of the amount of time that they spend typing or moving a mouse,” Rossillo explained. “They end up with carpal tunnel or long-term wrist injuries because they do these simple movements over and over again all day, every day.”

Is your loved one being

Drugged into Submission by the nursing home?

If you have noticed that certain parts of your body are deteriorating faster than others, consider what you do at work every day. You may have a claim for a repetitive stress injury and may not even realize it. Keep in mind that there are time limitations to seeking workers’ compensation benefits. Situations that involve RSIs are unique when it comes to timing for bringing your claim, but you should get legal help as soon as you realize your injury may be work-related. Acting quickly can avoid accidentally waiving your rights to benefits. Vincent Rossillo, who was interviewed for this article, is an attorney at Advocates United. If you would like to contact Advocates United for more information, please call 888-208-8105.

Rodney Warner Staff writer An improperly run nursing home may be using drugs to make your family member less demanding and easier to handle due to the over use of drugs. These drugs could sedate your loved one into a state where he or she may barely move or talk. Antipsychotic drugs are a powerful class of prescription drugs meant to treat mental illnesses such as schizophrenia. They’re also being used on those with Alzheimer’s disease and other forms of dementia which may cause angry outbursts, agitation and violence. That doesn’t mean the use of a drug that can cause a person to become virtually unresponsive is justified.

NURSING HOME

“There are some nursing homes that are warehouses for the elderly. Residents aren’t treated with respect or with the care they need. The less attention they need, the better, because it brings down the costs of care and increases profit margins,” said Michael Feldman, an attorney with Advocates United. There are many medical reasons why it shouldn’t happen. • If due to drug use your family member is no

“Our health care system and our nursing homes need to be prepared to care for this population, not medicate them into zombies.”

Michael Feldman ATTORNEY

longer physically active or even walk it can start a quick, downward health spiral. Pneumonia and bedsores can develop and become deadly. • If they can walk there’s an increased risk of falling which can lead to broken bones and head injuries that may never heal.

• There’s an increased chance of having a stroke. • Many nursing home residents often are on several medications at the same time. Adding a potentially powerful antipsychotic to the pile of medications a resident might take may lead to unexpected and dangerous side effects. • Medication mistakes are also common in nursing homes so not only might an antipsychotic be the wrong medication for the resident, it may also be given in too high a dose. As an alternative to drug use properly trained staff can focus on what’s causing bad behavior and work with the resident. But training and interacting with residents takes time that an understaffed nursing home may not want to take. It’s much simpler and less time consuming to administer a drug. “The number of people with dementia will climb as the population ages,” Feldman said. “More and more people will require specialized attention needed to care for these people. Our health care system and our nursing homes need to be prepared to care for this population, not medicate them into zombies.” Michael Feldman, who was interviewed for this article, is an attorney at Advocates United. If you would like to contact Advocates United for more information, please call 888-208-8105.

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PERSONAL INJURY

Driving

Blind

Sharing the road with distracted drivers

Steven Houghton Staff writer

“...any activity that takes the driver’s complete attention and focus away from the act of driving falls within the definition of distracted driving.”

Andrew Finkelstein

an you imagine what it would be like if you wore a blindfold every time you drove your car? Even worse, can you imagine if drivers all around you – on your own street, on the highway, in the parking garage - also drove blindfolded? Well, as horrific and dangerous as that sounds, every time a driver writes or reads a text message, or otherwise engages in an activity other than driving, they are in a very real sense driving blindfolded. According to Attorney Andrew Finkelstein, a personal injury lawyer with Advocates United who represents distracted driving accident victims, “Texting and driving is only one category of distracted driving, albeit the most publicized and well-known one.” Some 48 states ban texting while driving. The most recent statistics provided by the National Highway Traffic Safety Administration (NHTSA) reveal that more than 3,400 deaths and 391,000 injuries resulted from

distracted driving in 2015. Said Finkelstein, “The reality is that any activity that takes the driver’s complete attention and focus away from the act of driving falls within the definition of distracted driving.” Common examples of distracted driving include the following: • Eating a sandwich or drinking a beverage • Reaching into the glove compartment or console in search of a CD • Turning around to look in the back seat to see why the baby is crying • Combing one’s hair while looking in the rear view mirror • Utilizing the vehicle’s navigation system Distracted driving involves three different and specific areas of control, or more accurately, lack of control. The first is visual. Obviously, it is necessary for a driver to keep their eyes on the road at all times. The second is manual and pertains to the driver maintaining physical control of the

vehicle: hands must be on the steering wheel and feet must control acceleration and braking. The third aspect is cognitive – the mind must pay attention at all times, for the mind controls the visual and manual aspects. When there is a lapse of one or more areas, distracted driving occurs. The NHTSA often cites the following statistic – it’s quite an eye opener: It takes about five seconds, more or less, to send or read a brief text message. In those five seconds, a car traveling at 55 miles per hour drives about one hundred yards – the length of an entire football field. Therefore, the driver does not have control over his or her vehicle that entire distance. So, for all intents and purposes, a distracted driver is indeed a blindfolded driver. Andrew Finkelstein, who was interviewed for this article, is an attorney at Advocates United. If you would like to contact Advocates United for more information, please call 888-208-8105.

ATTORNEY

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20 | I The Legal Advocate – April 2018

TAX

What are my options when settling my

The Legal Advocate – April 2018 | 21 Elizabeth Marquette Staff writer IRS tax debt can be a huge burden to bear. The weight of it can feel enormous. If this is a feeling you can relate to, then settling your IRS tax debt might be an attractive solution. However, before you make such a significant decision, make sure you consider these options for settling IRS tax debt, before committing to a single course of action for settling that debt.

EDUCATION

Attorney Michael P. Earner, who has an advanced law degree in Taxation, recommends learning about several options before deciding, saying “each individual must determine which settlement option has the most attractive benefits and consequences for them, their future goals, and their current tax debt situation.” Some of the options to consider include: • Installment options. • Borrow funds to repay the IRS. • Partial payment installment options. • An offer in compromise (OIC). • File Chapter 7 or Chapter 13 bankruptcy.

TAX DEBT? “Your best move involves working hand-in-hand with your tax attorney...”

Of these, the offer in compromise, or OIC, is an attractive offer to many people dealing with IRS tax debt. It is also one of the most difficult alternatives to obtain. This is especially so for people who are hoping to go through the process on your own. “Your best bet is to work with a tax attorney who understands the requirements for receiving an OIC,” says Earner. Working with a tax lawyer can help ensure you meet those requirements and also often increase the likelihood of acceptance by the IRS. Another option to consider involves placing your account into “currently not collectible status.” What this means is that you are currently unable to repay the debt and places a hold on IRS collection attempts. However, Attorney Earner cautions this is not a “free pass.” You must still address your tax debt issue, but this method gives you some time to come up with a strategy for addressing the problem and either settling or repaying the debt. In other words, it doesn’t reduce your tax burden to the IRS in itself, but it can be used to buy time until you can work out one of the above solutions or work with a tax attorney to come up with a solution of your own. According to Earner, “Your best move involves working hand-in-hand with your tax attorney to identify the extent of your needs, explore the options available to you, and address their likely outcomes so you can choose the best possible pathway to take to achieve success.” If the IRS has been the monkey on your back for a while, it is time to act and remove that weight from your shoulders. More importantly, whichever method you choose to pursue to find tax debt relief, you want someone who can.

Michael Earner ATTORNEY

Michael Earner, who was interviewed for this article, is an attorney at Advocates United. If you would like to contact Advocates United for more information, please call 888-208-8105.

] Rodney Warner Staff writer If you’re a tenured teacher in a public school district you may have legal protections that limit the ability of the school administration to discipline and/or terminate you. Through tenure statutes teachers are protected from arbitrary dismissal and disciplinary decisions. Under these laws after you’ve attained tenure (successfully worked a given number of years) your contract renews automatically each year and you’re entitled to procedural protections from discipline or being fired. “Tenure statutes are intended to prevent a teacher who’s been successful for a number of years from arbitrary decisions by management,” said Jennifer Safier, an attorney with Fine, Olin &Anderman. “They also encourage teachers to stay in one school system and provide continuity for the school system and its students.” Laws vary from state to state and you may also have protections under a collective bargaining agreement. Generally, the school administration must show cause and follow procedural guidelines prior to firing a tenured teacher. These procedures generally include, giving notice to the teacher, stating the alleged misconduct against the teacher and affording the teacher a meaningful hearing. Most of these laws mandate teachers be employed

for a a number of years before being granted tenure. A non-tenured teacher can be fired or laid off at the school administration’s discretion, subject to contractual, statutory and constitutional restrictions.

“Tenure statutes are intended to prevent a teacher who’s been successful for a number of years from arbitrary decisions by management.”

Even without a state tenure statute, a teacher could attain tenure rights if the customs or circumstances of employment show he or she has a “legitimate claim of entitlement for job tenure.” The U.S. Supreme Court recognized this right and has ruled such a teacher is entitled to due process prior to dismissal by a public school district. Just cause to fire a tenured teacher can include, • Immoral conduct • Incompetence • Neglect of duty • Substantial noncompliance with school laws

Jennifer Safier ATTORNEY

• Conviction of a crime • Insubordination • Fraud or misrepresentation

If the “probationary period” ends successfully, teachers in some states will earn tenure automatically while in other jurisdictions the local school board needs to take some action (i.e. vote) to grant tenure. Tenure also provides some protection for teachers against demotions, salary cuts and discipline. Although very beneficial, tenure does not guarantee the teacher will keep a particular position, nor does it provide indefinite employment.

“These laws are similar to those that protect other civil servants from decisions simply based on personality conflicts or politics,” said Safier. “The tenure protections afforded to our teachers enables this country to have one of the best school systems in the world.” Jennifer Safier, who was interviewed for this article, is an attorney at Fine, Olin &Anderman. If you would like to contact Fine, Olin &Anderman for more information, please call 855-311-5639.

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The Legal Advocate – April 2018 | 23

Get even more Legal Advocate news and * a chance to win $100!

In the

CLASS ACTION

CROSSHAIRS NRA Being Investigated for Selling Insurance Without a License

Rodney Warner Staff writer If you own a gun you may be concerned about the potential legal costs of shooting someone. The National Rifle Association (NRA) is apparently selling insurance coverage to members to cover this situation without the proper license, which would break the law. The NRA is being investigated by the New York State Department of Financial Services (DFS) which regulates insurance in the state. The NRA’s Carry Guard insurance bills itself as providing advanced self-defense firearms training and insurance coverage for some legal costs if the policy holder shoots someone.

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A whole new perspective on legal news.

TheLegalAdvocate.com *This giveaway is open to residents of the United States and will end on December 31, 2018 at 11:59 pm Eastern Time. All entrants must be 18 years of age or older. Void where prohibited or restricted by law. No purchase is necessary. Winner will be picked randomly. Odds of winning depend on the number of subscribers on December 31, 2018. Please do not enter multiple times using different names and email addresses. You could be banned from all future giveaways if you cheat. If you’d like to receive our newsletter on multiple email addresses, we will not hold that against you, but obvious abuse will be disqualified. Prize winner(s) are chosen at random, notified by their registered email, and will be announced. Prize winner(s) have exactly three days from time of contact to respond with delivery instructions. Otherwise the prize is forfeited and a new winner(s) may be selected. Liability for any applicable taxes is the sole responsibility of the winner. Your personal information will never be shared with anyone unrelated to The Legal Advocate. We’re not responsible for anything that goes wrong after you receive your prize, although we are happy to take credit for things that go right. Contact us if you have any questions at info@TheLegalAdvocate.com

“Many organizations have reached agreements with companies to put their names to a wide number of products and services in order to generate revenue,” said Jeremiah Frei-Pearson an attorney with Blankinship, Frei-Pearson & Garber. “But it has to be done in accordance with “The NRA may be pushing the legal the law in a way envelope too far and breaking New that doesn’t defraud York’s laws and potentially the laws purchasers.”

of many other states.”

The NRA introJeremiah Frei-Pearson duced Carry Guard ATTORNEY in April of last year. The insurance was selling Carry Guard to members, they may issue underwritten by Chubb Ltd. but in February the a cease-and-desist letter that would asking the company gave the NRA three months’ notice it would organization to stop marketing the product to no longer do so. It’s administered by a third company, New Yorkers. Lockton Affinity. New York regulators are also looking at whether The organization has aggressively marketed Carry the NRA is improperly profiting from Carry Guard through social media and email marketing. Guard. Members buying the insurance pay New York law states that only licensed insurance $69.45 that goes to the organization. This may agents and brokers may solicit business in the state. be, in whole or in part, an illegal commission for Groups like the NRA can put their names on insursoliciting and arranging for the sale of insurance ance products and endorse them under New York without a license. law but what’s prohibited is direct insurance sales by The DFS has subpoenaed the NRA and Lockton unlicensed parties. Most states share that position. Affinity for documents stating how fees are If regulators decide the NRA has broken state law by collected when Carry Guard policies are sold as

well as information on the program’s promotional activities. The agency also sent Chubb a letter seeking the same documents and information. “The NRA may be pushing the legal envelope too far and breaking New York’s laws and potentially the laws of many other states,” Frei-Pearson said. “Organizations using false advertising and illegal fees in order to make money should be held accountable.” Jeremiah Frie-Pearson, who was interviewed for this article, is an attorney at Blankinship, Frei-Pearson & Garber. If you would like to contact Blankinship, Frei-Pearson & Garber for more information, please call 888-208-8105.

Would you like more information? Visit us at TheLegalAdvocate.com The content of this page is covered by and subject to the Legal Disclaimer found on Page 3 of this edition.

24 | I The Legal Advocate – April 2018

The Legal Advocate – April 2018 | 25

Trending News

BW3 faces suit over foods cooked in fat Buffalo Wild Wings, an American casual dining restaurant and sports bar franchise, is facing a lawsuit filed by an angered vegetarian who consumed mozzarella sticks and french fries cooked in beef fat without knowing of the products’ actual contents. The judge previously threw the case out, but plaintiff Alexa Borenkoff and her attorney appealed. The lawsuit claims the restaurant uses beef tallow in certain products that wouldn’t typically contain meat, without disclosing the information to customers, causing them to unknowingly consume unwanted ingredients. Judge Katherine B. Forrest of the U.S. District Court of the Southern District of New York originally dismissed the case back in 2017. She explained how the products in question were not marked as vegetarian on the menu, and therefore should not have been assumed to be meatless. See more at TheLegalAdvocate.com

A whole new perspective on legal news.

Organization fights for walrus’ endangered species title The Center for Biological Diversity, an environmental organization based in California, has filed a suit challenging the U.S. Fish and Wildlife Services after the agency decided not to list the Pacific walrus as a threatened or endangered species. The plaintiffs claim the agency is violating the Endangered Species Act by going back on its original decision to include the Pacific walrus under ESA protection. The suit states, “The Service has now made a complete reversal, determining that listing the Pacific walrus as threatened or endangered is ‘not warranted.” They claim the defendant’s decision “is not based on the best available scientific data” and its “findings and conclusions also flatly contradict or inaccurately represent the available scientific date and are unsubstantiated.” The Center for Biological Diversity is seeking an order for the U.S. Fish and Wildlife to reconsider its decision, hopefully placing the walrus back on the list of endangered species, as well as costs of litigation, attorneys’ fees and any other relief the court sees fit. The Center has fought for the rights of the Pacific walrus before, and continues to work to protect the breed from oil-development and global warming threats.

Buffalo Wild Wings claimed the class action lawsuit was illegitimate because Borenkoff “failed to demonstrate that she suffered a ‘real and immediate threat of future injury’ as a result of the challenged conduct.” Still, the vegetarian plaintiff continues to pursue her claim, hoping for legal relief.

In-N-Out burger sues YouTuber for impersonating CEO In-N-Out Burger, a popular fast-food chain on the West Coast, has filed a restraining order against YouTuber Cody Roeder, after the prankster impersonated the company’s CEO and harassed employees and customers at two separate locations. According to the suit, defendant Roeder, who posts YouTube videos under the name Trollmunchies, entered an In-NOut and claimed to be CEO Lynsi Snyder-Ellingso’s husband.

He demanded kitchen staff make him a burger for a “surprise test.” The next day, Roeder visited another InN-Out, claiming to be the acting CEO, and demanded to speak to a manager about the “food contamination.” After being questioned by staff, he proceeded to pull apart a customer’s burger, claiming it was “contaminated” and throwing it to the floor. All of this can be seen in a 10 minute video he posted on his YouTube channel, a channel with over 627,000 subscribers. The controversial video now has nearly 27,000 views. In-N-Out Executive Vice President Arnie Wensinger stated, ”We have recently seen an increase of visitors to our stores, who are not customers but instead are intentionally disruptive and who then try to promote themselves through social media. These visitors have unfortunately used deceit, fraud, and trespass to their own advantage, and in each instance, they have attempted to humiliate, offend, or otherwise make our customers or associates uncomfortable.” The defendant claims Roeder caused “significant and irreparable” damage to the fast-food chain, and is seeking over $25,000 in damages.

26 | I The Legal Advocate – April 2018

00 | The Legal Advocate

EMPLOYMENT

Hush!

Private employers generally have a lot of discretion over hiring and firing workers. Unless you work for a government entity or your employer is unionized, you don’t have protections against being disciplined, including being fired, for what you say to others or post on social media on social media.

The First Amendment prohibits government action from infringing on your right to speak your opinions (with limits). If your private employer takes action it’s not government action and the First Amendment doesn’t apply. With some exceptions your employer is free to fire you for any reason at any time, just as you are able to quit at any time for any reason. If what you say is controversial, impacts your employer’s public image or it’s simply something your employer disagrees with, it can result in the loss of your job. • The Chicago Police Department is in the

You can be fired for what you say or write outside of work

process of trying to fire an officer who is accused of posting insensitive racial and religious comments on Facebook and promoting violence against police protesters, Muslims and others. The Chicago Tribune states he reportedly has a bumper sticker on his car, which has been parked in front of a police station, showing a truck running over fleeing protesters beside the words, “All lives splatter. Nobody cares about your protest.” • Indiana University Health Systems recently announced a nurse who wrote a controversial, racist Tweet is no longer employed there, according to the Washington Post. Under a “Night Nurse” twitter account the woman posted, “Every white woman raises a detriment to society when they raise a son. Someone with the HIGHEST propensity to be a terrorist, rapist, racist, killer, and domestic violence all star.” The hospital wouldn’t say if she was fired, citing company policies.

• A woman working in the marketing department of Akima, LLC, was riding her bicycle on her own time when the Presidential motorcade transporting President Trump passed by. Twice she gave him “the finger,” later saying she was expressing her opinion about the President. Photos of her went viral on social media, she told her employer about it and she was later fired, reports CNN. If social media is where you like to voice opinions that may be offensive, advocate for something that’s controversial or state something that puts your employer or its customers in a negative light, be aware that if your employer learns about it, there can be consequences. Insight for this article was provided by Fine, Olin &Anderman. If you feel you’ve been affected by a situation such as this one you may contact Fine, Olin &Anderman at 855734-5676 to discuss it further.

David Nelms Staff writer You served in Afghanistan and while engaged in heavy combat, sustained a severe injury to your head, rendering you unconscious for days. You apply for VA compensaVETERANS tion benefits for service ADMINISTRATION connected disability for your Traumatic Brain Injury and Post Traumatic Stress Disorder (PTSD) sustained during service. You receive a decision granting you compensation for service connected disability. After three years, you feel that your disabilities are worsening, and you have not been able to secure and maintain employment, so you file a claim for increased rating. Soon after, you receive a letter informing you that the VA wants to reduce your service-related disability ratings. The news is disappointing and shocking. You are unsure how your family can survive without a steady monthly income. Maybe it was not much before, certainly not what you made when you were able to work full time, but it was something. “Unfortunately, this scenario is all too common. At the VA, what goes up, can also come down. Often, when a Veteran files a claim for an increased rating, the VA looks at all of the conditions again and sends the Veteran for re-examination,” said Christine Clemens, an attorney with Advocates United.

When a claim for increased compensation leads to a reduction

According to Clemens, the VA can reduce a person’s disability rating only if there is evidence demonstrating “sustained improvement” in the condition. “If a veteran’s disability rating has been in effect for five years, it is ‘protected’ and cannot be reduced unless the condition has

“At the VA, what goes up, can also come down.”

Christine Clemens ATTORNEY

actually improved and the improvements will be sustained. Often the VA proposes reduction without ensuring that the legal requirements for reduction have been met,” Clemens added. Additionally, in many cases there is evidence before the VA that the Veteran’s service connected disabilities preclude gainful employment. “Where the VA has this type of evidence and a Veteran has filed a claim for increased rating,

the VA is supposed to process or ‘adjudicate’ the issue. However, often, rather than processing entitlement to a total rating for disability or disabilities (Total Disability based on Individual Unemployability (TDIU)), the VA instead proposes to reduce the Veteran’s rating(s). Just last week, we had two identical cases walk into our office on the same day with this exact scenario! We accepted both cases,” said Clemens. Veterans unable to engage in gainful employment based on service connected conditions, should be recognized by the VA as being entitled to TDIU. This means that even though their overall rating may fall short of a total 100% rating, the VA will pay them at the 100% rate based on unemployability. For many veterans struggling with service-related disabilities, the VA is the resource they turn to for guidance and support. However, VA officials often look out for the department’s bottom line and find ways to reduce a veteran’s benefits. An experienced accredited VA disability attorney can help Veterans throughout the process to make sure that the law is followed and the Veteran’s rights are protected. Christine Clemens, who was interviewed for this article, is an attorney at Advocates United. If you would like to contact Advocates United for more information, please call 888-208-8105.

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The Legal Advocate – April 2018 | 29

Consumer legal funding could be your lifeline

Crossword

by Myles Melor

Workers’ Comp

It’s possible to get cash before your settlementwith no risk of the outcome Being a provider for your family isn’t easy but, at least before the accident, you were able to pay your bills on time so your family could finally have some financial security. After your injuries caused a loss of income, the bills, unfortunately, kept coming. And now with the holiday season upon us, you are left wondering how you will make ends meet.

LEGAL SERVICES

You’ve been assured that the proceeds expected from your lawsuit will more than cover your medical and living expenses, but lawsuits can take a long time to be resolved. What are you supposed to do right now? It may be years before you get your day in court, and until you get the compensation you deserve, you need a way to pay your bills now. Pre-settlement funding, or consumer legal funding, may be a way to get you the cash you need now.

for a claim to settle, a family may be forced to miss credit card payments or payments on other necessities which could have an immediate and long-term impact on a family’s finances. Consumer legal funding helps families avoid these financial traumas caused by accidents.

Would you like more information? Visit us at TheLegalAdvocate.com

Down

Phil Greenberg, who was interviewed for this article, is General Counsel at Oasis Financial. If you would like to contact Oasis Financial to discuss your specific situation you can do so at 800694-6084.

A consumer legal funding company provides non-recourse money in exchange for a portion of the anticipated future settlement proceeds. If the case is settled, the consumer legal funding company receives the previously agreed upon amount they purchased. It is not a loan. There are no periodic payments or fees. Best of all, there is no risk to the consumer. If you lose your case, there is nothing owed to the consumer legal funding company. According to Phil Greenberg, General Counsel at Oasis Financial, “Consumer legal funding helps families by providing a safe financial choice to replace lost income now, not years after an accident occurred that disrupts or changes your life.” Many families are unprepared to face a life-altering emergency. More than half of U.S. households are surviving paycheck-to-paycheck, which means that a car accident, job loss, illness, or injury could put a family at serious financial risk. If an injury prevents a plaintiff from working, it may be difficult to stay up-to-date on bills. While waiting The content of this page is covered by and subject to the Legal Disclaimer found on Page 3 of this edition.

“Consumer legal funding helps families by providing a safe financial choice to replace lost income now, not years after an accident occurred that disrupts or changes your life.” Phil Greenberg GENERAL COUNSEL, OASIS FINANCIAL

33 Contingent on 34 Start of a legal case title

Across

1 Financial recompense for an employee injured at work, goes with 6 down 5 ___ trial, preparation with roleplay, for a court hearing 7 Time just before an event 9 Reasons or basis for legal remedy or decision 10 Raise an objection 11 Go downhill fast 12 Damage, deprivation or injury 14 Avoid

15 Firm, for short 16 Witnessed 18 Admit wrongdoing 21 Unable to do one’s regular job due to illness or injury 25 Take ___ (rest) 26 Biz ___ 27 Consumed 28 Company whose Gulf oil disaster affected many workers 29 Bean curd 31 Brazilian city 32 General meaning of a statement

1 Money lost due to a worker being unable to do his/her usual job due to injury, 2 words 2 Building tops that can be the sources of leaks 3 Many ages 4 Period of time during which a court sits 5 Try to bring opposing parties together to settle a claim 6 See 1 across 8 Statement about an incident that is factual and honest 13 Street, abbreviation 15 Search thoroughly 17 Formal statements giving up rights 19 Attorney’s charge 20 Damage physically 21 Investigator from the P.D.- for short 22 Compensation granted, for loss of earnings on the job, for example 23 Type of law that defines the relationship between workers and employees 24 Medical professional who will perform an exam in a workers comp claim 26 Slap on as paint 29 Golfing area 30 The “F” in F.Y.I. Stumped? Find our crossword solution on the next page. Our puzze is also available online at TheLegalAdvocate.com

30 | I The Legal Advocate – April 2018

The Legal Advocate – April 2018 | 31

This month in legal history April 4, 1949

remained steadfast, making some of the most important decisions in history.

NATO, the North Atlantic Treaty Organization was formed. Twelve nations united to form a common defense against the threat of expansion by Soviet Russia into Western Europe.

April 22, 1889 Two million acres, originally belonging to the Creek and Seminole Indians, became part of the Oklahoma land rush. Signaled by a single gunshot at noon, thousands of settlers began the frenzied dash to stake a claim on the land made available by the federal government.

April 8, 1913 The 17th Amendment to the U.S. Constitution was ratified. The Amendment began the practice of directly electing U.S. senators, instead of state legislators choosing them.

April 24, 1800

April 12, 1945 After serving as vice-president for only a few weeks, Harry S. Truman became the 33rd president of the United States after Franklin D. Roosevelt suddenly died of a massive cerebral hemorrhage. Truman had barely received any briefings about the Atomic bomb or any other wartime difficulties surging to the forefront. He

Legal Ease

With more than 145 million items in its collections of books, recordings, photographs, manuscripts and maps, the Library of Congress (pictured) was established in Washington D.C. It’s America’s oldest federal institution and has become the world’s largest library, with thousands of new items added daily. Harry S. Truman

by Marty Bucella

See More Online

Oddball Law

by Alyssa Stalzer

Idiots: stay home on election day Have you been feeling slightly insane or just a little idiotic? If so, steer clear of Alabama if you want to keep your right to vote! Section 182 of the Alabama Constitution states, “The following persons shall be disqualified both from registering, and from voting, namely: All idiots and insane persons.” But who qualifies as an idiot? In the early 20th century, the term “idiot” was used to describe a person with a severe intellectual disability, or an IQ lower than 30. That archaic definition has since been disregarded. Now, the term is simply used to describe a person who exhibits foolish, silly or dumb behavior, like your idiot neighbor who lets her dog poop on your lawn or your idiot boss who insists he’s right when everyone knows

he’s wrong. I’m sure we can all think of a few idiots we would like to ship off to Alabama. Unfortunately for us, just because we think they’re idiots, doesn’t mean the law does. As comical as this law may seem, it actually carries a heavy meaning in more states than one. Alabama isn’t alone in banning idiots and insane people from voting –Mississippi, Missouri, New Jersey and many others make the list as well. The laws’ wording may change from state to state, but the terms “idiot” and “insane” remain a constant. The voting restraint is meant to take away the right to vote from those

who can’t mentally understand the act of voting. However, some argue that the terminology is offensive and unconstitutional, and have fought to change it. Lucky for us, outdated laws can change with the times!

No tiger selfies here! TheLegalAdvocate.com Crossword Solution:

If you plan on taking a selfie with a tiger for that dating site you just joined, think again. Since a recent trend took hold of people taking profile pictures featuring themselves and a tiger, New York State legislature has stepped in to intervene. In a newly-enacted law, it’s now illegal to pose for a photograph while touching a tiger in any way. The bill, introduced by Manhattan Assemblywoman Linda Rosenthal, passed both houses in 2015, and is intended to decrease the number of incidents where tigers have injured New Yorkers. “[People] can still pose with bears and monkeys,” Rosenthal said. “They just have to take big cats off their list.”

32 I The Legal Advocate – April 2018 The| Legal Advocate

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