Idaho Law Blog

Lump Sum Settlement Agreements: A Deal is a Deal

Published on: July 5, 2016 | by Racine Olson

By Fred J. Lewis and Mallory Mitton

In the Idaho worker’s compensation decision of Davis v. Hammack Management Inc., decide by the Idaho Industrial Commission on October 6, 2015, the claimant in the case filed a petition for the Idaho Industrial Commission to rule on whether the then new decision from the Idaho Supreme Court of Corgatelli v. Steel West, Inc., applied to the lump sum settlement agreement (LSSA) in the Davis case. Davis, the claimant, argued that his LSSA “unfairly requires Petitioner to waive his full statutory total permanent disability benefits, and adversely affects the timing of ISIF’s total permanent disability payments. Petitioner also wishes the Commission to evaluate the LSSA for ambiguity, and to order the payment of attorney’s fees by Employer and ISIF because they have contested Petitioner’s request for the “full measure” of his TPD benefits”. To summarize, the claimant believed that his LSSA was not giving him all of the benefits that he was entitled to.

The Industrial Commission ruled that Idaho Code section 72-318 prevented the claimant from attaching the LSSA, even though Corgatelli would have dictated a different outcome.

Updating Life Insurance Beneficiaries

Published on: June 30, 2016 | by Racine Olson

I had a recent case where an individual obtained a divorce from his wife, but did not remove her as primary beneficiary of his life insurance policy. The man’s Will stated that everything should go to his children. When the man passed away, the issue arose, “Who gets the life insurance proceeds?”

In general, a life insurance policy is a contractual relationship between an individual and the insurance company. Upon the death of the individual, the insurance company is under a duty to distribute the proceeds of the policy to the name beneficiaries regardless of what the individual’s Will states. Thus, in the above scenario, under the contractual relationship, the ex-wife could argue that she is entitled to the life insurance proceeds.

Fortunately, some states have laws to prevent an ex-wife from inheriting under a life insurance policy by automatically revoking the ex-spouse’s beneficiary designation upon the divorce being final. But, revoking the ex-spouse’s beneficiary designation may require judicial action which can be costly. Moreover, these laws only apply to ex-spouses and do not protect against other individuals that you may have wished to remove as a designated beneficiary.

Will a Trust Protect My Assets from Creditors?

Published on: June 29, 2016 | by Racine Olson

Most trusts do not protect assets from a grantor’s creditors. Contact an experienced estate planning attorney to review your trust documents for answers regarding the creditor protection your trust may provide.

The overwhelming majority of trusts in place today are known as revocable living trusts (RLT). Most RLTs provide benefits, including the seamless transfer of control in the event a grantor becomes incapacitated or dies. Most RLTs do not protect assets from creditors even though the assets may belong to the trust (i.e., a residence is deeded to the trust). The reason for this lack of creditor protection lies in the fact that the trust is revocable – meaning, the grantor (the person(s) placing the assets into the trust) may revoke the trust, or a portion thereof, and regain direct control of the assets. Thus, the assets are available to the grantor to satisfy obligations to creditors.

The Idaho Department of Health and Welfare will also consider assets belonging to an RLT as assets of the individual applying for Medicaid benefits. Generally, the assets are available to the applicant if he/she simply revokes the trust. As a result, persons seeking Idaho Medicaid eligibility will likely not meet the Medicaid resource eligibility requirement if they simply transfer their assets into an RLT. Contact an experienced Idaho Medicaid planning attorney to plan for the long-term care of your elderly loved ones.

Personal Injury Damages

Published on: June 28, 2016 | by Racine Olson

In a personal injury case there are two categories of damages: The first is commonly called “economic” damages; while the second is known as “noneconomic” damages. Both of these categories should be considered and discussed with your attorney to fully maximize the value of your case.

What are economic damages?

01. Economic damages are the compensation you receive to replace money or property you may have lost as a result of the accident. These damages include money to replace or repair your vehicle, medical bills, lost wages, money to pay household services if you can no longer do them yourself, and lost future wages. In a wrongful death case, economic damages also include funeral expenses.

The Risk of Stroke After An Accident

Published on: June 23, 2016 | by Racine Olson

If you have been in an accident and suffered an injury to your head, then you have to be aware of the dangers this may pose. Sometimes injuries of this type do not become evident for days, weeks, or even months. This makes it even more important to discuss possible additional injuries with your physician and refrain from settling your case until your doctors are satisfied that no such injury has been sustained.

What is the risk?

01. The national Center for Biotechnology Information has stated that it is possible for you to suffer a stroke after an accident occurs. Studies show that the more damage there is to the skull, the more likely it is for this phenomenon to occur. If you have suffered a concussion, skull fractures, or brain damage, you should notify your physician and those you live with and love immediately. This allows you, your doctor, and others to monitor your health and be on the lookout for anything out of the ordinary. It seems to go without saying that you should not let the possibility of a stroke go unmonitored.

No Bullies allowed in Idaho Worker’s Compensation Cases

Published on: June 23, 2016 | by Racine Olson

By Fred J. Lewis and Mallory Mitton

The general public’s ideas about the legal system are often shaped by TV shows such as Law and Order: SVU, The Good Wife, and Fairly Legal. The plaintiffs and defendants in these fictional courtrooms are enemies who battle it out using any means necessary to win. These are highly sensationalized and exaggerated representations of what really occurs in criminal cases and civil litigation. In contrast, worker’s compensation proceedings should not be like this at all. The entire purpose behind worker’s compensation laws is to get injured workers fair compensation for their injuries. It has been said that worker’s compensation cases are” nice guy law” where all the parties need to act civility and politeness. The junkyard dog approach will not be tolerated.

The definition of “nice guy law” is illustrated in the 2016 Idaho Industrial Commission decision Salinas v. Bridgeview Estates. The Commission states “…the ‘no-holds-barred’ mentality which is often a part of civil litigation has no place in workers’ compensation proceedings. Unlike civil litigation, which is truly an adversarial-based process, the goal of workers’ compensation – to provide an injured employee with those statutory benefits to which the worker is entitled – should be shared by all parties”. Because the goal of worker’s compensation is to provide injured employees with the benefits they need, no one loses if that goal is shared by everyone involved in the case as it should be!

Nursing Home Falls

Published on: June 20, 2016 | by Racine Olson

Making the decision to place a loved one in a nursing home can be difficult, even emotionally traumatic, for both family members and for the person who is actually entering this new residence. The last thing anyone wants to learn is that their loved one has fallen.

What is the risk for a fall?

01. In the U.S., around 1,800 people die in nursing homes from falls each year according to the Centers For Disease Control. In Idaho, just like other parts of the country, older people are more susceptible to general and physical harm from falls. In addition, the severity of the harm is greater to these more fragile family members. Your relative may fall due to the fact that mobility is decreased as a person ages. Diminished gait and mobility problems account for 24 percent of nursing home falls according to the CDC. New medications can also affect one’s ability to move from one place to another.

Maybe you are not an “Independent Contractor”

Published on: June 20, 2016 | by Racine Olson

By Fred Lewis and Mallory Mitton

Sometimes so called “independent contractors” can successfully bring worker’s compensation claims.

The 2016 Idaho Industrial Commission decision Youren v. Treasure　 is an interesting case that examines whether the claimant is an employee or an “independent contractor”. Under Idaho law, employees injured in work related accident are “entitled to medical, temporary disability, and permanent impairment benefits as well as attorney fees, costs, and penalties” while independent contractors are not entitled to those benefits.

Top Three Ways to Kill the Value of Your Worker’s Compensation Case! (part 3)

Published on: June 16, 2016 | by Racine Olson

The third is being rude or demanding. Many people don’t think about this, but your attitude can change everything. A work injury will turn your world upside down. You are going to be upset. You are going to be angry at times during the process. However, if you go into a deposition with the insurance’s attorney and get upset, rude and irritable with them, they may be less likely to settle with you. These are the people who are going to give you money, so be nice to them. You can be firm about your injury but don’t lash out at them. Be as pleasant as possible. Dress professional and be polite. This goes with our medical providers as well. If you are good patient and they like you, they may be willing to help you. This saves money on expensive experts and will further increase the value of your case.

5 Things to do Before you Meet with an Attorney to Probate an Estate

Published on: June 13, 2016 | by Racine Olson

Losing a loved one is difficult. Grieving with your loss while trying to navigate the probate process alone is more than most people can cope with. As a result, most people hire an attorney to help them complete a probate. Probate is the name given to the process of collecting and managing the assets; debts or taxes; and distributions of property of a person who has died. Once you found an attorney to help you through the probate process, there are 5 things you can do to prepare for your first meeting.

headstone

First, order and receive eight to ten (8-10) certified copies of the death certificate. Death certificates are used in planning and carrying out the probate process in many ways from providing a copy to the Court to forwarding copies to account holders and life insurance providers. If possible, bring at least one certified copy of the death certificate to your first meeting with your probate attorney.

Second, determine if there is an existing written Will, or written Estate Plan. Finding the original documents and providing these documents to your probate attorney will help in the determination of whether probate is required or not. For instance, if there is a trust, probate might not be necessary. If probate is necessary, many states require that the original will be filed with the Court during the probate process. Locating and bringing this to your probate attorney will avoid delays.