Smart Law Blog

WORKERS’ COMPENSATION: CASE SETTLED, BUT THE INJURY GETS WORSE?

If your workers’ compensation case is resolved by way of a Stipulation and Award with future medical care open or Findings and Award with future medical care open, and the work related injury becomes worse, you can seek medical care. You should report this to your supervisor and ask to see a doctor. If you require emergency care call 911 or go to an emergency room. If you do not require emergency or urgent care, ask your employer to send you back to the doctor or their clinic. If they refuse, it is advisable to call an attorney to assist you in obtaining authorization to go back to the doctor. Should your injury get worse and the doctor finds that you have “new and further disability” within 5 years of your original injury, you can file a Petition to Re-Open your case and seek additional permanent disability over the amount of disability that your resolved your case for. Again, contact an attorney to assist you with this because the Petition to Re-Open has to be filed with the Workers’ Compensation Appeals Board and there are time limits.

Find the right legal resource in Southern California by contacting SmartLaw: (866)SMARTLAW.

WHAT BENEFITS AM I ENTITLED TO AS AN INJURED WORKER?

Generally, the injured worker is entitled to the following benefits: past, present and future medical care for the work injuries; temporary disability benefits; permanent disability benefits; supplemental job displacement benefits-if the worker’s date of injury is 2004 or later; death benefits, to spouse, children or other dependents, if the worker dies from job injury or illness.

Find the right legal resource in Southern California by contacting SmartLaw: (866)SMARTLAW.

Serving Southern California counties, SmartLaw is the best way to find the right qualified legal resource. SmartLaw is certified by the State Bar of California and the American Bar Association. SmartLaw is a public service of the Los Angeles County Bar Association.

The materials and information available on this website are for informational purposes only. The materials and information available on this website are not for the purpose of providing legal advice and should not be relied upon or used in place of legal advice from an attorney. You should contact an attorney to receive advice with respect to any particular issue or problem you may have. For free assistance finding the right legal resource, contact SmartLaw by calling (866)SMARTLAW or by visiting us at SmartLaw.org.

WORKERS’ COMPENSATION: WHAT RESOLUTIONS/SETTLEMENTS ARE THERE?

Generally, your workers’ compensation case is ready to settle when the doctor determines that your medical condition has reached Maximum Medical Improvement (your condition is not going to get any better or worse).

There are three (3) ways for a workers’ compensation case to resolve.

The first way is by Stipulation with Request for Award.  In this method, the parties (you and the employer insurance company) agree to resolve/settle certain issues in the case: date of injury; occupation; body parts injured; wage amount; period of temporary disability; temporary disability rate; temporary disability payments; permanent disability; mileage reimbursement; future medical; doctor’s bills; etc. In most cases, the amount of the settlement is paid out over a period of time. If you hire an Attorney, the other side’s attorney’s fees are deducted from your settlement. This type of settlement must be approved of by the Workers’ Compensation Appeals Court Judge.

The second way a workers’ compensation case is settled is by Compromise and Release. This method also takes into consideration the above facts, but may result in additional sums being added to the settlement amount to buy out future medical benefits, etc. This type of settlement usually results in a lump sum settlement payment instead of a payment over a period of time. The Workers’ Compensation Appeals Court Judge must approve this type of settlement as well.

The third way to resolve your case is to go to Trial and have the Workers’ Compensation Appeals Court Judge issue Findings and an Award. This will usually require the injured worker to testify under penalty of perjury before the Judge who will consider the testimony and credibility of the witnesses, documentary evidence such as medical reports and records, depositions, and the like, and Stipulation and Award the parties reach on particular issues. If an Award is issued in the injured worker’s favor, then attorney’s fees will be deducted and the amount owed to the injured worker will usually be paid over a period of time. 

Find the right legal resource in Southern California by contacting SmartLaw: (866)SMARTLAW.

First, let us give some background on what is happening.

One of the stages of the USPTO trademark process is called Publication. This stage is a 30-day period when your application is published to give anyone notice that they can oppose the registration of your trademark. If someone wants to oppose, then that person or company will file a Notice of Opposition with the Trademark Trial and Appeal Board (TTAB), which is the administrative board that handles these proceedings. A Notice of Opposition is the filing that formally begins a TTAB Opposition proceeding, and is analogous to a plaintiff filing a complaint in civil court.

This article focuses on Oppositions; however, be aware that the TTAB also handles similar proceedings called Cancellations. In that proceeding, a party will file a Petition for Cancellation to cancel your registered trademark.

Why is someone opposing your trademark application?

There can be several reasons why an opposer files a Notice of Opposition. Some of the more common reasons are:

• The opposer believes that your application is confusing the public into thinking that there is a connection between your mark and the opposer’s goods or services;

• The opposer believes your mark is disparaging or will hurt the opposer’s reputation.

• The opposer believes that your mark’s registration will limit the opposer’s rights in some way.

What should you do if you receive a Notice of Opposition?

The first thing that you want to do is review the Notice of Opposition to understand the alleged claims and arguments. You should consider the following as you read through the notice:

• Is your mark similar to the mark owned by the opposing party?

• Are the goods or services of the two marks similar?

• Was the opposing party’s mark used in commerce before your initial use?

Next, do some research on the opposing party. As with any legal proceeding, you want to know whom you are up against. An opposer may be an individual or it could be a large corporation. It is important to know your opposer, so that you can determine an effective strategy.

Third, you should consult with an experienced attorney to help you further understand your situation, explore your options, and evaluate whether you are going to hire an attorney to represent you in the proceeding. TTAB proceedings require compliance with the Federal Rules of Civil Procedure, Trademark Law, and Trademark Rules and Procedures, so it is difficult to handle without an attorney. The proceeding consists of all of the stages of litigation, including pleadings, disclosure requirements, discovery (depositions, interrogatories, requests for production of documents and things, and requests for admission), motions, briefs, and a trial. The TTAB board highly recommends that both parties have legal representation.

What is an Extension of Time To Oppose?

This is not the same as a Notice of Opposition. If someone is planning to file a Notice of Opposition but needs more time, then the person or corporation will file a request to extend its time to oppose, and you will receive a copy. This puts you on notice that there is an issue. The most important thing to know about TTAB Proceedings is that you do not want to ignore and miss the deadline to file an Answer. If you fail to file a timely Answer, then the opposing party wins by default, and your application will be abandoned.

WHAT TO DO IF INJURED AT WORK

If you have been injured at work you should notify your supervisor or person in charge to report the accident/injury as soon as possible. This type of injury is referred to as a Specific Injury.

If the injury occurs gradually, over time, be sure to report it to your supervisor as soon as you believe it is a result of a work injury. This type of injury is referred to as a Cumulative Trauma. 

Your employer must provide you with a DCW-1 Form (Claim Form). After you make your claim, the employer is required to provide medical care. You should be sure to keep a copy of any forms you fill out for your employer, including the claim form. Be sure to ask your employer to provide you with the name of the workers’ compensation insurance company. Your employer is required to post this information at your workplace.

Again, it is important to report the injury as soon as possible. You should not delay in notifying your employer of your injury. Many injured workers inform their employers but decide to wait to make a claim or wait to see a doctor. However, if you are injured you should notify your employer immediately and ask your employer to see a doctor. Do not take time off work and use sick or vacation days and then report the injury.

Generally, your employer will have a clinic that they will send you to for examination and/or treatment. Be sure to tell the doctor about each and every complaint (whether it is physical and/or emotional) that you have as a result of your work injury. If you fail to tell them about a part of your body that is injured, the insurance company may deny treatment and disability for that portion of your injury. Therefore, even if one part of your body, for example a broken arm, hurts the most and you are most concerned about that body part, be sure to advise the health care provider at your very first visit of all physical complaints that you have. If the employer refuses to send you to a doctor or clinic for medical treatment and you have medical insurance, be sure to seek medical care through your medical insurance. If you need medical care and do not have insurance and your employer refuses to send you to a clinic or for medical care, make sure to seek medical care anyway. You need to be sure to seek medical care when you need it and protect your rights. Be sure to advise the emergency room personnel that you were injured at work.

Please note that if you sustained serious injuries and require emergency care, call or have someone call 911 or get to an emergency room as soon as possible, so that you can be treated right away. Be sure to advise the emergency room personnel that you were injured at work.

 You may be eligible for workers’ compensation benefits including medical treatment even if your employer tells you that your injury is not related to your work or if your employer paid you in cash, or if you are a temporary or part-time worker. Please also note that you do not have to be a legal resident of the United States to receive most workers’ compensation benefits. If your employer refuses to provide medical care, or threatens to fire you if you report your injury claim, you should contact an attorney to discuss your rights. It is illegal to punish or fire an injured worker for being injured on the job or asking for workers’ compensation benefits.

There are time limitation periods for making a workers’ compensation claim. Failing to report an injury within thirty (30) days may affect your right to receive benefits in workers’ compensation. There are time limitations for filing an Application for Adjudication with the Workers’ Compensation Appeals Board. The statute of limitations for workers’ compensation claims is usually one (1) year from the date of injury. You are advised to file an Application for Adjudication with the Workers’ Compensation Appeals Board within one (1) year of the date of your injury. If an Application for Adjudication is not filed by that time, you can be forever barred from making your workers’ compensation claim and getting benefits. There are some exceptions to this rule, but do not delay. Consult an attorney as soon as possible.

Find the right legal resource in Southern California by contacting SmartLaw: (866)SMARTLAW.

Understanding what the “remedies” might be related to any legal action is an important consideration when you are thinking about whether or not you should take legal action. The questions is, “What can I hope to get out of this legal action?”

If you believe that your copyright has been violated and you want to take action to enforce your rights, there are a number of things you can hope to accomplish.

RESTRAINING ORDER
One type of remedy for a copyright violation is a court order restraining the infringing party from continued use of the copyrighted material. Here, a court may issue an order that requires the other party to discontinue the use of the copyrighted material.

STATUTORY DAMAGES
Sometimes in a copyright infringement matter, it is difficult to discover what the “actual” damages happen to be. For this and other reasons, a court may decide to award what is known as “statutory damages.” Here, the remedy that may be available to a copyright owner would be determined based on what a statute provides.

CONFISCATION AND/OR DESTRUCTION
Often, in a copyright infringement scenario, many copies of infringing material may have been produced, such as in the form of a book, pamphlet, or other type of media. Here, a court may require that physical materials related to the copyright infringement be confiscated and/or destroyed.

PAYMENT
What may be the most sought after remedy related to copyright infringement, a payment or payments to a copyright owner may be ordered by a court. This type of remedy may be reflective of the profits that the infringer gained as a result of the infringement or it may be reflective of the losses that the copyright owner has sustained.

ATTORNEYS’ FEES
Pursuing any type of legal action related to copyright infringement typically requires that the copyright owner incur legal expenses in the for of attorneys’ fees. Though awarding attorneys’ fees is not unique to copyright infringement, it is not uncommon for a copyright owner who prevails in a copyright action to be awarded attorneys’ fees.

There may be other remedies depending on the facts of any given copyright infringement matter. Here, it is important to talk to an experienced copyright lawyer to understand all of your options. Contact SmartLaw to find the right legal resource for your matter.

It’s always smart to know as much as you can about how much it will cost to hire a lawyer. If possible, knowing exactly how much it will cost in advance can help you decide how to move forward. Many attorneys will agree to represent a client on “flat fee” basis, and getting a flat fee arrangement with your lawyer can be a great way to insure that you don’t spend more than what is in your budget, so it might be good to ask your potential attorney about flat fees.

What is a flat fee?

Flat fee representation generally means that a lawyer will represent a client for set amount, determined in advance, that will not change. However, typically the flat fee amount is not the only amount that a client will have to pay. In addition to the flat fee rate charged by the lawyer, the client will also likely have to pay “costs.” Costs are fees that are not related to attorneys’ fees, which can include fees for filing, postage, copies, travel, and other costs. Here, if an attorney agrees to represent you on a flat fee basis, you will also have to pay for costs in addition to the flat fee amount.

Complicated cases and complex cases

Now that you have a general understanding of how flat fee services work, understanding the types of cases lawyers are most likely to charge a flat fee in will be helpful. Lawyers are more likely to offer a flat fee rate if the total amount of work that will be involved is known in advance. Generally, an attorney can tell how much work will be involved based on the complexity or potential complexity of the facts in your case.

If your case happens to be complicated, or has the possibility of becoming complicated, it’s less likely that a lawyer will agree to a flat fee arrangement. However, if you case appears to be relatively simple and uncomplicated, if the attorney knows precisely how much work will be involved from the beginning to the end of the matter, it’s possible that a flat fee arrangement will be possible.

Flat fee and the fee agreement

Finally, if your lawyer agrees to a flat fee arrangement, it’s important to make sure that this arrangement is stated in the “fee agreement” you have with your lawyer. Here, the fee agreement should state what is included and what is not included in the flat fee arrangement. The fee agreement should also include the flat fee amount that you will pay for the work that the lawyer will do.

To learn more about flat fee rates, talk to your lawyer.

In California, Small Claims Court is a special court that makes resolving disputes fast and inexpensive. Although there are many things to consider with small claims court, there are a few important considerations with small claims that you should know before you get started.

To sue another person or a company in Small Claims Court, you must be at least 18 years old.

A lawyer cannot represent you in Small Claims Court. However, you can have a lawyer coach you for small claims court. Here, a lawyer can help you get prepared, explain what the procedure is, help you organize your evidence, and provide great advice on what to do and what not to do.

Generally, in Small Claims Court you cannot ask for an award of more than $10,000. If your case involves damages that exceed $10,000 you should consider suing the other person or company in regular civil action. Businesses using Small Claims Court cannot ask for an award of more than $5,000. This limit does not apply to “sole proprietors,” who are treated as “natural persons.” Otherwise, there are additional limitations that you should either research or talk to a lawyer about.

There are many different types of cases that you can file in Small Claims Court. Some examples include, if your property has been damaged by another person, if you have been injured in a car accident, if you have a dispute regarding a security deposit with a landlord or a tenant, if you have a dispute with a contractor, if you are trying to collect money that is owed to you, HOA disputes, and many other types of disputes.

There are deadlines to file your case in Small Claims Court depending on the type of case you have. This is referred to as the Statute of Limitation. If you are unsure about the deadline in your case, you should talk to a lawyer and do your own research. The key here is to file your case as quickly as possible after the events related to the case happen. If you wait too long, you may not be able to file your case at all.

There are fees you will have to pay to file a case in Small Claims Court. The amount of the filing fee depends on the amount you are seeking to gain in the case. Depending on the circumstances, these fees can range from $30 to $100.

Generally, if you are suing someone in Small Claims Court, you have to go to court. Though there are exceptions, generally, you cannot send someone else to Small Claims Court to appear for you. If the person you are suing does not show up to court, you still have to explain your side of the case. If you are being sued, you must go to court if you would like your side of the case to be considered by the court. Typically, there is only one hearing to attend.

Some Small Claims Court cases are appealed. Generally, you can only appeal a Small Claims Court case if you were the person being sued. You cannot appeal if you were the person who filed the Small Claims Court case.

There are many more details to consider with Small Claims Court. If you are unsure about your case, consider hiring a lawyer to coach you.

Find the right legal resource in Southern California by contacting SmartLaw: (866)SMARTLAW.

To save money and insure the best possible results with your lawyer, being prepared for your first meeting with a lawyer is important. In this video, you can get tips to insure that you get things started right with your lawyer.

VIDEO: Tips on Meeting with a Lawyer

Find the right legal resource in Southern California by contacting SmartLaw: (866)SMARTLAW.

LLC Business Formation: $800
Trademark Registration: $500
Uncontested Divorce: $800
Bankruptcy Chapter 7: $850

SmartLaw Flat Fee Details
Your flat fee rate covers all attorneys’ fees related to your matter. Costs related to your matter will be extra. Costs will include filing fees and any other cost required to address your legal issue, such as postage, transportation, copies, etc.

SmartLaw Flat Fee Limitations
Below are the limitations for each SmartLaw flat fee offering.

LLC Business Formation: $800
Single member California LLC
Completion of LLC documents
Operating agreement
Acquisition of EIN
Does not include filing fees or other costs.

Trademark Registration: $500
Limited trademark search
Form completion
One class of goods or services
Does not include filing fees or other costs.

Uncontested divorce: $800
Advance agreement on division of all property
Advance agreements on allocation of debt
Advance agreement on child/spousal support
Advance agreement on child custody
Both parties in the same state
Does not include filing fees or other costs.

Bankruptcy Chapter 7: $850
Single filer, initial filing
Petition preparation
Appearance at Meeting of Creditors
No real estate
Does not include reaffirmation agreement
Does not address any objections to bankruptcy discharge
Does not include filing fees

Participating attorneys have agreed to offer these legal services at these rates. However, it is entirely up to the referred lawyer whether or not you qualify for the flat fee rate. If you would like a second opinion on a flat fee rate, contact SmartLaw.

Participating lawyers have been screened by the Los Angeles County Bar Association for experience, insurance, good standing, and other professional requirements. The Los Angeles County Bar Association Lawyer Referral Service, SmartLaw, is certified by the State Bar of California, serves clients in Los Angeles, Riverside, San Bernardino, and Ventura counties, and refers clients in all practice areas. If you are a lawyer interested in receiving Flat Fee referrals from SmartLaw, click here for information or call (213) 896-6571.

Find the right legal resource in Southern California by contacting SmartLaw: (866)SMARTLAW.