WORK COMP CRIME DOESN'T PAY

WORKERS COMPENSATION CONVICTION UPHELD ON APPEAL
$70,680.34 restitution for faked claim properly imposed. . .


Matthew Ailer was in an MVA on Hwy 93 in 5/11 while
driving a Garden City Janitorial van. He filed a claim with MSF
for an arm injury. He asserted that his symptoms worsened even
after continued treatment. Stephen Powell released him to full duty
10/4/11. He began seeing PT Kristen Green 10/6. He asked
for a note restricting him from lifting a heavy floor burnisher.
Green wrote the letter, and Ailer gave it to his employer Cory
Miller. The next day Miller trained Ailer and Jeff Russell to
safely lift the burnisher and unload it from the truck with a ramp.
Ailer filed a 2nd comp claim reporting that his arm went numb
as he was lifting the burnisher 10/16 and it fell on him. Russell
and Chelsea Chafee, another co-worker and Ailer's then fiancée,
were with him and took him to the CMC ER where he complained
of pain, numbness, and a pin-pricking sensation in his
neck & back.

During the months following the accident he complained
to doctors that he was in extreme pain, could not use
his right arm and leg, and could not walk without a cane. MSF
accepted his claim. On 3/12/12 Russell told Miller that Ailer's
burnisher accident was staged. Russell reported to MSF Special
Investigator Gaylen Buchanan that Ailer and Chafee asked
Russell to put the burnisher on top of him after they finished
cleaning a store and that Russell reluctantly agreed after Ailer
and Chafee promised to pay him $20,000 from settlement of
his claim. Russell stated that they then drove a few blocks from
the store where Russell and Chafee placed the burnisher on Ailer's
chest and rolled it back and forth. Ailer was not satisfied and
had Russell punch him several times. They then went to CMC.
Buchanan's investigation discovered that Ailer's complaints
& claims did not align with his symptoms or lack of symptoms.
MSF referred to DCI. Agent Butch Huseby focused on Ailer's
medical reports and interviewed providers, noting that the
doctors agreed that he showed no medical signs of trauma or
injury.

Ailer was charged with felony theft and convicted by
a jury. Judge Seeley deferred sentencing for 6 years and ordered
$70,680.34 restitution. Ailer appeals.

Ailer alleges that Martin Judnich was ineffective by allowing
Huseby to testify on an ultimate legal issue ("I looked into the
statute to see what elements of theft are involved in this case
and did he purposely and knowingly commit a crime to get
to this end, and I would say he did."), failing to rebut a "material
misstatement of fact" as to whether Ailer had been treated for
conversion disorder, and failing to object to the Prosecutor
asking Ailer if witnesses were lying when his testimony conflicted
with their testimony. Even if Judnich had objected to
Huseby's statement, Ailer fails to show how the result would
have been different. Clearly, jurors would have formed their
views based on credibility of the principal fact witnesses rather
than a minor comment by the investigator as to his opinion.

Ailer likewise fails to demonstrate how Judnich's failure to
rebut testimony as to whether Ailer had been treated for conversion
disorder prejudiced him. Shortly before Cecelia Robinson
testified that he had never been treated for it she stated that
she was aware that he had been diagnosed with it but did not
think it was related to "either work comp incident." Psychologist
Jeremiah Tollison testified that 2 previous providers had diagnosed
conversion disorder and described the specifics of the
disorder and how it applied to his case. (He testified that
conversion "is when a patient presents with or sensory deficits
that aren't really attributable to a medical cause. Often a neurologist
will evaluate the patient and cannot find a medical explanation
for why the patient is having the symptom they are having.")

Nor was Ailer prejudiced when Judnich failed to object to the
Prosecutor asking if witnesses were lying. It is within the Judge's
discretion to allow "were they lying?" questions. Hart (Mont.
2000) (probative when clarifying a line of testimony, evaluating
credibility of a defendant who is claiming everyone else is lying,
or when a witness flatly denies events). Ailer claimed that
everyone else was lying and flatly denied that the burnisher
incident was posed.

Seeley did not abuse her discretion in finding that garnishment
of Ailer's wage was admissible under Rule 404(b). Ailer
alleges that
to prove his motive to pose the burnisher incident and that the
prejudicial effect did not outweigh probative value. Seeley's
restitution award was supported by substantial evidence. Former
MSF claims examiner Suzanna Simmons provided an in-depth
explanation of the amounts paid to Ailer after his 2nd claim
was filed, and the documents she used to calculate restitution
were admitted at the sentencing hearing. Ailer alleges that she
failed to concretely distinguish between payments for the 1st
and 2nd claims. However, she affirmed numerous times that
her calculations related strictly to the 2nd claim, which had a
different claim number. She opined that the date of his release
to full duty -- 13 days before he filed the burnisher claim --
separated the claims and benefit payments, and also noted her
reliance on what Ailer had told his doctors about his injury.
.
State v. Ailer, DA 16-240, 2/6/18.

Construction Accidents Are Generally Avoidable.

Marion, NC- McDowell County police responded to two separate fatal accidents Tuesday, both involving dump trucks. One victim was a construction worker, and the other victim was a passing motorist.

In the first incident, a man was pinned under a dump truck in the construction zone near West McDowell Junior High School, the News Herald reported.

Rafeal Magana, 47, of Marion, was sweeping up road debris when he was run over by a dump truck hauling dirt.North Carolina Highway Patrol trooper Sgt. Kevin Owens told the News Herald that the dump truck driver, 39 year-old Gregory Beaver, was backing down a hill when he ran over Magana.

Magana was pronounced dead at the scene moments after emergency personnel arrived.

The accident is still under investigation, but Owens said the driver did not see the man in the roadway. Both of the men work for Baker Grading and Landscaping who have been working on a road widening project between the high school and the junior high.

No students witnessed the incident, the only witnesses worked for the construction company.

According to the News Herald, that was the second accident at that construction site since work began in July. Several workers were constructing a 30 foot rock wall when scaffolding collapsed beneath them. At least eight people were injured, two men,seriously.

Construction is one of the most dangerous occupations. Preliminary data from OSHA indicates that fatal construction accidents increased by 5 percent last year. In 2012, there were 775 deaths of workers, mostly contractors in the construction and transportation industries.

The second incident occurred just a few hours later when a large rock inside a dump truck rolled off and crashed through the driver’s windshield crushing him.

Randy Arnett, 57, was driving a dump truck hauling a large boulder when the tailgate released and the boulder rolled out of the truck onto a vehicle.

The boulder crashed through Douglas Mahan’s windshield and crushed him. Mahan, 62, of Spartanburg, South Carolina, was pronounced dead on the scene, per the News Herald.

Mahan’s passenger Marian Otten was not injured.

North Carolina Highway Patrol Trooper R.W. Monosso said that charges are pending.

While the circumstances involving both of these were vastly different, they both involved dump trucks and demonstrate the importance of utilizing safe practices when working with heavy equipment. According to OSHA, transportation and roadway accidents account for 2 out 5 work-related fatalities.

Dump trucks, tractor-trailers, trash trucks and other large trucks can cause significantly more harm and property damage than smaller passenger vehicles. Not all operators of these large, heavy trucks are careless or negligent, but when they are, they can cause a great deal of harm to one or more individuals.

Victims of truck accidents face expensive medical bills and may find they are unable to work. Whether an accident has occurred on a worksite, on the roads or involves a third party a truck accident attorney will work to make certain their clients are fairly compensated for their pain and suffering.

Neighbor Poisoned My Dog! Can I Sue?

Question: Can I sue my neighbor for letting rat poison in my yard and killing my dog?
Question Detail: My neighbor is aware I had a small dog. She owns the home but does not reside there. Can I sue her for letting rat poison fall into my yard after my dog ate it and died?
  Answer:  Yes you can file a suit, but your damages would be limited to the replacement cost of getting another dog, unless you could prove malicious conduct.  How will you prove your neighbor placed the poison in your yard?

Did My Divorce Attorney Commit Legal Malpractice?

What is required to show lack of standard of care of an attorney who represented a party in a dissolution? Information I provided to my attorney before, during and after trial was not provided to court and resulted in court not considering information resulting in significant financial loss in decree - allowed lies to be treated as facts by failing to object, failed to get medical records in through exception for child so was not considered (said would deal with on appeal, but refused to later, even though stated I 'got screwed' and the court is bias/corrupt, refused to represent on appeal). Attorney failed to present info to court respecting spouses refusal to make support payments agreed upon in stipulated agreement when judge failed to order (the remedy in agrmt) for 2 years. Discovered after the appeal that attorney's comments in court essentially cancelled the support agmt without my permission ANSWER:  Your complaints are with the judge's decisions.  Your attorney, like all attorneys, made judgments about what information he thought the judge wanted to hear versus making the judge angry because it is irrelevant.  If prior promises made by your ex meant anything, we would start with the wedding vows.  What about those promises?  Much of what you think is essential information, doesn't matter.  Petty indignities and slights, no show, disses, don't legally matter.  I doubt you will find an attorney unless you want to pay an hourly rate with a substantial retainer.   Thousands of dollars chasing the wind.   Take the money the court left you with and put this disaster behind you, pay your child support and accept your marriage was the biggest mistake of your life.  Overcome. Don't grind yourself down.  Get a new girl friend.  Don't get married.

Can Public School Force 8th Graders to Do 2 Hours Of Public Service to Graduate?

Question: What are the parents rights versus the schools rights?
Question Detail: I don't know where to go with this because in some ways it isn't a big problem now but it's the implications of my issue that worry me. Let me try to explain. I have two children in the local school system, one is a senior in high school and one is in middle school. Sometime after my daughter graduated the 8th grade the school system added a new requirement that all 8th graders must complete two hours of unpaid work (community service) to graduate. I have talk to various administrators about this and I have determined that this isn't a state requirement but a local one and it must be done after school. I have also determined that was added to the district's curriculum as a graduation requirement. I don't know how or why this would be part of our curriculum because it has nothing to do with basic education or meeting state goals. But in our district curriculum is set by a committee made up of school personnel and parents who make recommendations to the school board, which they then vote on. Although I think having children do volunteer work (community service) is a good thing I don't think that it is the school's job to make this kind of a decision. That should be the parents job not the schools. Even if I don't agree, can they ban my child from the class trip and graduation for something he didn't do after school hours? What are my rights as a parent? What else can they force my child and me to do on our own time, after we are talking about a minor here? Although I have talked to school officials I haven't gone to the school board yet because I'm not sure they can legally make this type of decision in the first place and would affect my approach to them. I have heard only rumors that another committee is going to recommend that at the high school level they add to that curriculum 15 to 20 hours of unpaid work (community service) to be done in order to graduate. Help!!

Answer:  Dear Lawyer says you should be ashamed of the example you are setting for your children.  Wrangling with the school board over two hours of picking trash, which can easily be justified as a good teaching example of public service.  Disgruntled underachievers look for non-issues like this to make noise over nothing.  Save yourself public embarrassment and find another something to complain about.  Give your children sex education lectures instead.

Does The State of Montana Offer Compensation For Rape Victim?

Question: Does the state offer personal injury compensation for rape?
Question Detail: We live in one state. My son was raped in another state. Does the state offer such thing as personal injury compensation?

Answer:  Montana does have a Crime Victims Compensation program, but I think the crime must occur in Montana and the fund only covers medical expenses up to a maximum of $25,000.  

Inadequate Nasal Spray Warning Leads To Heart Aneurysm.

Question: Can I sue a medical company because their health warning wasn't big enough?
I used an over the counter nasal spray for a year and a half. I started having extremely high blood pressure so I stopped using the nasal spray, and my blood pressure went down. And I discovered that I have an aortic aneurysm after using the nasal spray, too. There was a warning against prolonged use on the package but it was extremely small and I did not see it until I had been using the spray for over a year. Can I sue the medical company?

Answer:  Unless you can prove the spray caused your aortic aneurysm, your lawsuit will probably be dismissed.