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The Pitfalls and Risks of Modified Duty

What Is “Modified Work” Under California's Workers’ Compensation Law? The definition of “Modified Work” is set out in CA Code of Regulations, Title 8 Ch. 4.5 Division of Workers Compensation Section 10116.9 as follows: (h) "Modified work" means regular work modified so that the employee has the ability to perform all the functions of the job and that offers wages and compensation that are at least 85 percent of those paid to the employee at the time of injury, and located within a reasonable commuting distance of the employee's residence at the time of injury. The Pros of Modified Duty ...

By |11/05/2019|

Northern California Wildfire Debris Removal Suits Filed

The Bohemian Two contracting companies that cleared fire debris in the North Bay last year have been defrauding the federal government on contracts across the country since at least 2015, a lawsuit filed last week alleges. AshBritt Environmental, one of the two companies named in the suit, recently hired local media magnate Darius Anderson to lobby for its interests in Sacramento. Sonoma County recently hired a former employee of the other company, Tetra Tech, to oversee the county's emergency-management response. Disaster-recovery players such as Anderson have highlighted, in public statements, the necessity of public-private partnerships to fully recover from the ...

By |05/03/2019|

Arns Davis Law Files Lawsuit Against BART on Behalf of Family of Nia Wilson

From the San Francisco Chronicle Just days after BART kicked off a security blitz aimed at curbing fare evaders, the family of a woman killed last year on an Oakland station platform has filed a wrongful death lawsuit against the transit agency, saying its latest efforts are too little, too late. The suit alleges that heightened security could have spared the life of Nia Wilson, an 18-year-old woman who was fatally stabbed in the neck at the MacArthur BART Station. Her alleged killer, John Lee Cowell, 28, was a serial fare evader and should have never gained entry, the family’s ...

By |17/08/2018|

Arns Davis Law Will File Complaint against BART for Stabbing Death

is preparing to file a lawsuit on behalf of the family of Nia Wilson, the woman tragically killed the night of Sunday, July 22, 2018, against Bay Area Rapid Transit (“BART”). The suit will allege BART failed to meet the duty of common carriers to provide riders with the highest standard of care. According to reports, Nia Wilson, 18, and her two sisters Letifah and Tashiya, were boarding a BART train car at the MacArthur BART Station when John Cowell, an apparent fare jumping transient slashed Nia across the neck, and stabbed her sister, Letifah, before fleeing. Nia’s ...

By |02/08/2018|

Ask the Expert: Severe Penalties for Employers Who Deny Rest Breaks

The SF Building Trades "Organized Labor" Newsletter will run an "Ask the Expert" column featuring attorney Kevin Osborne responding to worker questions regarding right to rest breaks and retaliation. Q: I just started a new project with an employer from down south. The first day on the job, the foreman said, “we don’t take breaks.” They have to give me breaks, don’t they? Also, I’m worried they’ll fire me if I complain. What should I do? A: California law guarantees workers 10-minute paid rest breaks for every 4 hours of work. If an employer refuses to allow breaks, ...

By |28/07/2018|

Majority Rules: The Consensus on the Retained Control Doctrine

Premises liability law regarding workers on construction sites developed its own path over the last fifty years. This subset of cases involves injuries occurring on property within the possession or control of a general contractor during construction. Starting in the early 50’s California courts found that the duty of the general contractor, who has control over the premises, is essentially the duty to "keep the premises in a reasonably safe condition" for the employees of the independent contractors. (See Revels v. Southern Cal. Edison Co. (1952) 113 Cal.App.2d 673, 677; Gonzales v. Robert Hiller Construction (1960) 179 Cal.App.2d 522; Gettemy ...

By |17/01/2018|

The Ins and Outs of Expert Disclosure under California Code of Civil Procedure § 2034

An expert witness can make or break a case. A good expert grabs the jury’s attention and offers the moral authority of a saint. A bad expert can turn the tide against the hiring party and torpedo a case. This crucial aspect of a case starts, and sometimes ends, with the disclosure of expert witnesses pursuant to California Code of Civil Procedure § 2034. The California Legislature created a detailed process for compelling parties to identify experts and to conduct discovery regarding their opinions. [T]he need for pretrial discovery is greater with respect to expert witnesses than it is for ...

By |12/01/2018|

Current Construction Injury Law in California

Since the last issue of the Forum dedicated to construction litigation, a number of cases have refined the area of construction injury law, but none have taken any great leaps in any direction. This article provides a current summary of the state of the law, and describes the recent cases that have touched upon the area. Hooker v. Department of Transportation and McKown v. Wal-Mart On January 31, 2002, the California Supreme Court decided McKown v. WalMart Stores, Inc. (2002) 27 Cal.4th 219 and Hooker v. Department of Transportation (2002) 27 Cal.4th 198. In short, these cases provide that if ...

By |10/01/2018|

Elsner v. Uveges and OSHA into Evidence

Representing workers injured on construction sites just became easier with the recent Supreme Court decision of Elsner v. Uveges (2004) 34 Cal.4th 915, where the issue of OSHA admissibility was placed directly before the Court. The Court, in a unanimous decision, held that (1) the 1999 amendments were intended to allow evidence of OSHA regulations and the Labor Code statutes into evidence as a standard of care for third-party actions; (2) the Labor Code could also be used to establish a duty on the part of a third-party defendant; and (3) failure to meet the standard of care identified in ...

By |09/01/2018|

Admissibility of Insurance/Indemnity Agreements

A motion in limine to exclude evidence of insurance is familiar to every trial attorney who practices in the personal injury field. As a matter of course, defendants seek to exclude all evidence that insurance and/or indemnity agreements may cover any verdict rendered by the jury pursuant to Evidence Code § 1155. In most cases, this motion is not opposed by plaintiff’s counsel and no mention of this fact is made at trial. The decision, however, not to oppose this motion in limine may be too hasty in some cases, especially construction cases that involve indemnity agreements. While black letter ...

By |15/12/2017|
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