Idaho Law Blog

Idaho Workers’ Compensation Claimants Can Usually Choose Their Doctor

Published on: January 5, 2017 | by Racine Olson

We, as Americans, love to choose the doctor who will treat us for medical problems. This streak of independence has killed most universal health care or single-payer plans that have been advanced by various politicians over the last 50-60 years. Idaho Code Section 72-432 (7) allows employers to have the first crack at selecting a physician for injured workers in Idaho. Some aggressive insurance adjusters are pushing injured workers toward insurance-oriented doctors who will lean toward telling the Idaho Workers’ Compensation insurance company what they want to hear. The good news is that very few doctors in Idaho will intentionally try to hurt their patients’ Idaho Workers’ Compensation claims. If you are an injured worker in Idaho, the referral made by the insurance adjuster is usually to an urgent care or “doc in the box” physician. They will typically do the initial treatment and attempt to help you with your Idaho Workers’ compensation claim. They may even order diagnostic tests like MRI scans or CT scans, but if these initial diagnostic tests indicate you have a more serious injury, these urgent care physicians are typically helpful in referring you on to specialists who can do surgeries or other types of curative treatment. This is the point in time when you will need an experienced Idaho Workers’ Compensation attorney to help guide you to surgeons and other specialists that are willing to testify in support of your Idaho Workers’ Compensation claim. Don’t let your Workers’ Compensation insurance adjuster pick your surgeon or specialist.

Another tactic used by Idaho Workers’ Compensation adjusters is to send you to one of their independent medical evaluators. They may offer the opinion that you need no further medical treatment. Idaho Code Section 72-432 (1) allows you to furnish your own medical care at the expense of the employer if they do not provide you with reasonable medical care. All you have to do is prove, through medical testimony, that the medical care that you are requesting is “reasonable”. Many injured Idaho workers have to use their own private health insurance to pay for medical expenses after they are injured while their Idaho Workers’ Compensation claim is being disputed. Upon settlement, the private health insurance companies now have a subrogated claim or a right to reimbursement.

Idaho comparative fault

Published on: January 5, 2017 | by Racine Olson

By Patrick N. George

Accidents are almost never just a simple matter of one person being at fault and paying for the injuries caused. Usually both parties bear some responsibility and attorney’s, judges, and ultimately juries are the ones who end up assigning the percentage of fault to each side. The case is presented to the jury and it compares the fault and adds the percentages up to 100%. When the plaintiff or injured party is compared to the defendant, his or her fault reduces the amount recoverable. In other words, if he is 25% negligent in causing the accident and the defendant is 75% liable, the plaintiff’s jury award will be reduced by 25% giving only 75% to the injured party. This principle is known as the rule of modified comparative fault.

Thirty-three states observe the rule of modified comparative fault. Each is free to interpret it differently. Idaho follows the 50 percent bar rule. This means that a victim may only recover damages if he or she is found to be responsible for 50 percent or less of the accident.

Who Can Get a Copy of My Will?

Published on: January 5, 2017 | by Racine Olson

By Lane V. Erickson, Attorney

You are preparing your Estate Planning including a Last Will and Testament. You are putting various information in your Last Will and Testament that is sensitive, such as disinheriting a family member. 　Or you are leaving more money or property to a specific family member than to another. You anticipate that your family will view the gifts that you have given in your Last Will and Testament as being unfair. Now your question is, who can get a copy of my Last Will and Testament?

The good news is that until you die, no one but you is entitled to have and hold your Last Will and Testament. Even your attorney would be required to give to you your original Last Will and Testament if you choose. Most attorneys keep ahold of the original Last Will and Testament so that if it is ever needed for probate purposes, it can be easily found. However, even then, your lawyer cannot distribute a copy of your Last Will and Testament to anyone without your prior approval and authority.

Removing a Homeowner After a Non-Judicial Foreclosure

Published on: January 4, 2017 | by Racine Olson

By Lane V. Erickson, Attorney

You are a holder of a mortgage on real property located in Idaho. The borrower who owns the Home Depot that and making their regular payments to you. You did everything right and doing a non-judicial foreclosure under Idaho law. A trustee’s deed has been issued naming you as the titled owner to the property. However, the homeowner refuses to leave the property. What can you do now to remove the homeowner after completing your non-judicial foreclosure?

Idaho law provides a mechanism for removing a homeowner once a non-judicial foreclosure has been completed. This process is called an ejectment. Ejectment requires proof of (1) ownership, (2) possession by the defendants, and (3) refusal of the defendants to surrender possession. Pro Indiviso, Inc. v. Mid-Mile Holding Trust, 131 Idaho 741, 745, 963 P.2d 1178, 1182 (1998). Further, a suit for ejectment is equitable in nature and, therefore, that there is no entitlement to a jury trial on the ejectment claim. Ada County Highway Dist. v. Total Success Invs., LLC, 145 Idaho 360, 369, 179 P.3d 323, 332 (2008).

Limits on Using Off-Duty Conduct in Employment Decision

Published on: January 4, 2017 | by Racine Olson

By Lane V. Erickson, Attorney

In Idaho the limits of using off-duty conduct in an employment decision are mostly controlled by either an employment agreement or the “at will” doctrine described above. However, some exceptions to this may still apply. Using social media as an example illustrates these narrow exceptions. While none of the incidents reported below occurred in Idaho they likely will in the future. As reported:

May 25, 2010, Brixx Wood Fired Pizza waitress Ashley Johnson was pretty fired up about the couple that lingered three hours over lunch, made her work an hour past her quitting time – and then left her only a $5 tip. So Johnson, 22, did the 21st century equivalent of griping to the kitchen staff (or the bartender down the street): She vented on Facebook. “Thanks for eating at Brixx,” she wrote, “you cheap piece of —- camper.” (For the record, the $5 tip was 17 percent of the customers’ bill.)

Using a Specific Gift List as Part of Your Estate Planning

Published on: January 3, 2017 | by Racine Olson

By Lane V. Erickson, Attorney

Oftentimes the simpler you can keep your estate planning the better it will be. If your Last Will and Testament is complex, then anytime a major circumstance in your life changes, you may need to rewrite your Last Will and Testament. Our goal in completing estate planning for our clients is to keep things as simple as possible and yet allow flexibility with regards to the giving away of specific gifts. To do this we incorporate a specific gift list into every Last Will and Testament that we draft. Idaho law allows us to do this if we find it to be a good practice.

WHAT IS A SPECIFIC GIFT LIST?

Bicycling Injuries

Published on: January 3, 2017 | by Racine Olson

By Patrick N. George

As could be expected, with the rise in bicycling, there has been a corresponding increase in injuries. A recent study showed that this increase even in the number of adult bicycling injuries between 1998 and 2013. Pocatello, Idaho has seen its own tragedies when it comes to bike riding when a well known and beloved physician in the area was seriously injured. One study involved data gathered from the National Electronic Injury Surveillance System and combined with U.S. Census information. The study showed that the increase is, in part, the result of increasing injuries in cyclists that are older than 45 years of age. This comes as no surprise given that cycling in that age group is becoming more and more popular.

The increase in injuries to older riders is substantial. When one compares 1998 and 1999 to 2012 and 2013, an increase in cyclist injuries was 28%. When looking at age groups, those injured in an accident who were over 45 increased from just 23% to 42% of the total injured riders. Worse, the hospitalizations involving this older group of riders increased from 39 % to 65%. One analyst has surmised that the speed of these bicycles is in large part responsible for the more severe injuries and the higher number of hospitalizations.

When is Your Employee’s Conduct an Employment Issue

Published on: January 2, 2017 | by Racine Olson

By Lane V. Erickson, Attorney

Scene from the TV series The Office:

Michael Scott:“Yeah, Ryan snapped at me. But there was this twinkle in his eye, that I picked up on, which said, ‘Dude, we’re friends. I’m doing this for appearances. I am the big boss now. And I have to seem like an ogre. But you know me, and you trust me and we like each other. And we’ll always be friends. And I would never take you for granted in a million years. And I miss you, man, and I love you.’. . . His words.”

You Cannot Prove a Total Permanent Disability if Your Vocational Expert Does Not Support You

Published on: January 2, 2017 | by Racine Olson

By Fred J. Lewis

In Beascoechea v. Liberty Northwest Insurance Corporation decided November 17, 2016 the Claimant was found to be 45% disabled inclusive of his 6% permanent partial impairment rating. At the time of the hearing the Claimant was 68 years old and had told everyone he was retired. The Claimant had Dr. Mary Barros-Bailey PhD. testify on his behalf. Dr. Barros-Bailey opined that the Claimant was 60% permanent partially disabled if the Claimant did not return to work for the pre-injury employer and astonishing enough, testified that if the Claimant did return to work that there would be no loss of labor market access, and wage loss, therefore no disability. Dr. Barros-Bailey was the only expert that testified in the case. It is astonishing that the Claimant was awarded any disability at all in this case given the following:

The employer had offered a job to the Claimant and was willing to accommodate his restrictions.

Can I Spend My Kid’s Inheritance?

Published on: January 1, 2017 | by Racine Olson

By Lane V. Erickson, Attorney

Let’s assume you have been vigilant in completing your estate planning. You have your Last Will and Testament in place and it includes specific gifts that you are leaving for specific people. You have a boat that your Last Will and Testament leaves to your oldest son. You have an heirloom china set that’s been in the family for several generations that Last Will and Testament gives to your daughter. You have nearly a half a million dollars stored away in savings and retirement accounts that will also go to your children once you pass away.

But, what if you change your mind. What if you decide that you want to travel the world. What if you suddenly find yourself in need of the money You have work so hard to store away. Can you go ahead and use the money, or sell the boat or give the china to someone else even though these things are specifically described in your Last Will and Testament as going to someone else? The short answer is yes. These items belong to you and you can do whatever you want with them, even if you have specifically listed them in your Last Will and Testament.