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. 

Subpoena Served On Witness Who Will Be Out Of State

Question: What happens if I receive a subpoenae but will leave the state before the court date? I got a subpoena the other day. I immediately called the lawyer who gave it to me and informed him that I am moving out of state before the court date and there is no way with me being unemployed I will be able to fly up for the court date. The incident this is regarding is a civil matter which happened while I was working and was the one who spoke with the claimant since I was a security supervisor. This incident happened almost 5 years ago. Since then, just last may I have returned from Iraq and been dealing with a multitude of psychological issues. Having to deal with this now on top of everything else is just making things worse for me. In January I met with all the lawyers and gave statements and answered questions on what little bit I could recall, and since then for me psychologically in my everyday life things have really gotten much more intense. I don't see this court thing as being practical with my state of mind and moving as well. What can be done about this seeing as I won't even be around during the date? Will I be in trouble if I do not show? Should I get a letter from my doctors stating that I am being seeing for several mental health issues?


Answer:  Write a letter to the attorneys listed on the subpoena and save a copy.  Unless the attorney provides you with travel expenses and lodging, he has the option of taking your deposition before you leave the jurisdiction and using that at trial.  

Car Dealer Lied About 2013 Nussab Being In Prior Crash.

Question: Did the auto dealer defraud me by not letting me know the car was in a wreck?  I purchased a used 2013 Nissan. Agreed upon price was 20272, including tax tags title, everything. Well I used a pre-approved loan check for 19000 to pay for the truck and was going to put down the remainder ($1,272) on a credit card. When we went to the processing area I had my card in hand and thought she took it to swipe but she never did. The dealer took my approved loan check for 19k and did my paperwork saying that everything is paid and the agreement is a 0 balance. Now is it possible they can come back to try and take my $1272? Isn't it their mistake they did not charge the card? As I said all paperwork said that this is paid in full, which both parties signed. I asked the dealer if the truck had ever been in a wreck because the back bumper looked off, so I asked for a Carfax to make sure it had never been in an accident. The dealer told me that the title is clean and the vehicle had never been in an accident, then the car check came back clean. After I get home I am checking through the glove box in the owner's manual and come across a receipt for bodywork due to a wreck in 2013! I specifically asked the dealer if it had been in a wreck and he and the manager said no, plus the car check came back clean as well. So did the dealer for not letting me know the car was in a wreck defraud me? And am I at fault for the dealer not doing his paperwork correctly? Should I just let bygones be bygones because of my break? Any help in this matter would greatly be appreciated.

Answer:  It depends on how serious the body work charges were for.  A couple hundred dollars wouldn't be much, but thousands in repairs would be different.  Sue the dealership in small claims for $5000 for diminution of the value to the car. 

What Are Medical Payment Benefits In Your Auto Policy?

Montana Medical Malpractice Attorney Gives Initial Advice

Uninsured Driver Wonders What Will Happen?

Question: What could I do if I am being sued for a car accident?
Question Detail: I was in a car accident, it was my fault since I lost control of my car. Now the lady whose car I hit wants money can she win? I don't own anything I don't have any savings. I have 4 kids and my wife was let go from her job so right now my family and I live from only my pay check to pay check.



Answer:  If you were uninsured, shame on you.  If you don't respond to the lawsuit she may file, she will get a default judgement and then she can try to find some of your assets, like a paycheck, to snatch to pay for the damages you caused.  Unfortunately, 20% of Montana drivers are uninsured so when you get insurance for your car(it's the law) get the maximum amount of uninsured and underinsured coverage your company will allow to cover you in case someone like you hits you?

Wife's Lawyer Won't Return Husband's Calls About Unpaid Medical Bills?

Question: What could I do to get insurance to pay for medical expenses?
Question Detail: My wife's lawyer has been trying to place a lien on the insurance company of the person who caused and injured her in an auto accident. The insurance company has refused to pay her medical expenses to date. Her condition has worsened in the last 2 months. I have scheduled an appointment with a specialist who requires a fee for his service, but additional treatment will require insurance. What course of action should I pursue? I have left messages with her lawyer but have not received any response.



Answer:  The lawyer represents your wife, not you, however, he or she should be able to explain what the plan is to her.  If there is a written denial, then her health insurance should be notified that they are the primary payor, subject to a lien on any third party settlement. 

Can The City Tell Us How To Kennel Our Dogs?

Question: What are our rights regarding dogs and city ordinance? How?
Question Detail: The town we live in is harassing us about our dogs. We can't chain them up, can't let them run around, so we bought a huge kennel cage for them put them to the back beside the house and they say that's unsanitary. We rent and the land lord won't let us put a fence to fence in the backyard and we can't put the cage there because it slopes they say they are going to fine us and take our dogs what are our rights.



Answer:  Basically yes, they can interfere with your keeping the dogs in a kennel.  In the long run, finding a better rental that can accommodate  your absence all day or a doggie daycare is the most cost effective solution.  Think about living in that cage all day.  You need a better solution for your pets.  A lawyer playing legal games with the city attorney is not a solution to the problem.  Look in the mirror and you will find the solution.

Will The Electric Power Company Charge Us For Removing Hanging Tree Limbs?

Question Detail: Recent storms caused 2 trees to lean, branches are hanging over the electric lines. We don't have the money to remove them and I don't know our liability if we try and they bring down the lines. If we call the electric co will they remove the branches that would take down the lines if they fell? Without charging us? Otherwise they are completely on our property and would not matter if they stay where they are or fell down but if they fall the way they are now the branches will definitely take out the power lines.



Answer:  No, but they may not agree with your opinion about the need to cut them.  All you can do is report the potential problem.  Do Not try to trim the tree yourself.  Electricity kills.

Can I Sue My Boss For Cutting Off My Finger?

Question: When I file my personal injury suit after a work injury do I have any limitations? Answer:  You have 30 days to give your boss or supervisor notice that you have been injured and one year to file a written claim for compensation in Montana. 

Question Detail: Do I have to file my claim under a certain amount of time if I lost my finger while working on a car in the auto shop I work at? My boss, who was working with me, was not paying attention when he was working the engine crane, and was who caused the accident. He was not paying attention, and was negligent.

Answer:  If your employer has complied with the Montana workers' compensation law by having a policy, then that is your exclusive claim.  You are not allowed to sue him for negligence.

How Do I Stop A Telephone Credit Card Scam

Question: How could I cancel a bait and switch verbal agreement contract?  Recently I was contacted by phone by the American Publisher's service LLC. They said I had won a $1000 gift certificate and they wanted to ship it out to me. Then they said gave me a magazine subscription offer and said that when I received the gift certificate package that I needed to sign the package and send it back and that would release the certificate and start the subscription. They said they needed my credit card number not to charge at this time but to verify that it was valid for use upon receipt of the signed certificate package. At this point I became very skeptical and told them I think I will pass and they assured me that my card would not be charged until confirmation of the contract. I figured when I got the gift certificate package I could do some research on the company and make a decision on what I wanted to do then. They switched me through several representatives and at one point recorded the conversation and I didn't realize that the conversation they recorded did not mention the deal starting upon me signing the certificate package and returning it to them. Two days later I received the gift certificate package checked my credit card saw that they had charged my account, and checked online and saw that this company was a verbal contract bait and switch scam. My question is what my options for canceling this deal are. Of course I called the company and told them how I interpreted how this worked but they stated that they had me on recording and that return of the signed certificate was not the contract sealer but that during the conversation I agreed to this magazine contract and I'm legally bound.



Answer:  Immediately call your credit card company and challenge the charge.  Fraud is never protected by the law of contracts, oral or written, so the scammers can play their recorded statement to the credit card compliance investigators. 

Car/Motorcycle Trade Deal Falls Apart. Now What?

Question: Do I have a case to get damages for a faulty business deal? 
Question Detail: My boyfriend made an even exchange of his 07 motorcycle for a 00 Lincoln ls, which he in turn gave to me. He had to file for lost title but they still wanted to trade that day. A written/dated/signed agreement was created which stated the man would keep title to his Lincoln until the motorcycle title came in the mail, at that point the vehicles were exchanged and we took possession of the Lincoln. In the span of four days after the trade I sold my current vehicle, applied for a loan to repay my boyfriend for my new vehicle and transferred full coverage insurance for the vehicle as well. On the fourth day via text message the man said he was backing out of the agreement and no longer wanted to trade. We disputed this claim stating the vehicles have already been switched and he has signed an agreement to exchange titles when the motorcycle title came in the mail. The man refused to continue with the agreement he had signed and in turn dropped the motorcycle off at our residence and demanded keys back for his Lincoln or he would report it stolen, we refused. Later on the fourth night the police show up at my residence stating a man wanted his vehicle back, we explained the situation and the officers said they would stay out of this dispute because it is a civil matter. While the officers were still at our residence the man was dropped off at our driveway got into the Lincoln and zoomed away. The officers were very upset and expressed their dislike for the way the business was handled by this individual, both suggested we seek damages due to this deal and said they would make a report of the incident. I am now left with no car, a lean and full coverage insurance on a vehicle that was taken from me. We have no way to get to work or take the children to school without the other having to miss work. I don't know what to do. Seeking distress/damages for this faulty business deal is what I am hoping for, but will we have a case when all we have is a handwritten signed contra

Answer:  Trading property with titles, like motorcycles and cars, requires attention to detail.  As usual, Small Claims Court is your only chance.  Keep copies of whatever proof you have and let the judge try and sort it out. 

What Should I Do If I Fall At My Hotel?

Question: Is insurance or the company responsible for injuries sustained on their property and why?  I was walking outside on the grounds of the hotel and there was a piece of the sidewalk and pipe that was cracked. I tripped on it and injured my knee, ankles and arms. I had to have medical attention to both areas and have permanent scarring and am going through physical therapy because of my ankle break. Can I get compensation from the hotel or will insurance take care of it? Are they liable for this incident? If so, how do I file my claim?



Answer: The insurance will pretend to be taking care of you at first. But eventually they will say you were at fault because you didn't step over the crack.  Without photos, you have no chance of making a case you could take to court.  Even with photos, the time of day, weather conditions, drugs or alcohol. all are factors. Why did you fall?  Do you have witnesses?

The fact you fell is not enough to prove the hotel violated a safety rule.  What did they do or fail to do that justifies blaming them?

Can a store ask a customer to leave because they handed out religious information?

Question: Can a store ask a customer to leave because they handed out religious information?

Answer:  If the store uniformly prohibits all solicitation or public demonstrations, then yes.  Religious information has no more protection than any other pamphleteer.  There are exceptions but no one is allowed to foist themselves upon others, for any reason, including religion.