Is your next driver your next headache? Are you about to hire a professional Worker’s Compensation applicant?

by gspencermynko

Recently, Transportation Attorneys helped a client, a local trucking company, deal with a “Serial Applicant”. What is a “Serial Applicant” you ask?

A “Serial Applicant”, or as I sometimes like to refer to them, a “professional applicant”, is someone who, year in and year out, injures various parts of his body, hires an applicant attorney, and files a workers compensation claim.

Astonishingly, each new year brings with it the promise of a new injury. One year it’s his leg and lower back, another year it’s his neck and shoulder, and perhaps next year he’ll develop carpal tunnel syndrome.

Despite the marginal and questionable nature of his injury claims, the “serial applicant” will have no trouble finding an attorney willing to take his claim. Why? The applicant’s attorney can easily effectuate an economic settlement and pick up some 5710 fees, which will put a few thousand dollars in the attorney’s pocket for a minimal amount of work.  Furthermore, there are “high-volume” applicant attorneys who literally sign up hundreds of cases like these. Do the math and you can see why this is a lucrative business model.

So, the “Serial Applicant” and his attorney file a claim down at the Worker’s Compensation Appeals Board, knowing that for a minimal amount of effort, they should be able to get several thousand dollars.

Now here’s the kicker: The “serial applicant”, in the case that I’m referring to, was actually an “owner operator”, who should be considered an independent contractor. Therefore, the trucking company/carrier should not be responsible for any work injuries suffered by the “serial applicant”. Right?

Wrong.  In this case, the “Serial Applicant” was clearly misclassified as an owner-operator, and was in fact an employee driver. Therefore, the trucking company was on the hook for his “injuries.” The trucking company had no choice but to pay the “Serial Applicant” $10,000 to make the case go away.

The trucking company in this case could have saved thousands of dollars, by hiring Transportation Attorneys to do a workers compensation background check on this particular driver prior to hiring him. We would have told the trucking company that the potential driver had no less then 10 separate Worker’s Compensation claims in the last eight years. Accordingly, this “serial applicant” would never have been hired by our client, and would’ve been forced to move on down the road in search of his next victim.

Don’t let this happen to your trucking company. Transportation Attorneys is a law firm with expertise in protecting your trucking company. Call us or visit www.trucklawca.com today!

The real value of arbitraion agreements for trucking companies.

by gspencermynko

Every, and I mean every, trucking company should have a mandatory arbitration clause in any employment or independent contractor agreement they use.

Arbitration is designed to be an informal and quick process for businesses to resolve disputes. However, when utilized against a weaker party, like an employee driver or owner operator, an arbitration clause is a weapon that can defeat even valid claims.

There are many reasons that an individual is disadvantaged by arbitration:

One. High costs: A claimant usually has to pay anywhere from $3000-$6000 upfront just to initiate a case. This is obviously much greater than filing a claim in civil court or small claims, and there is no such thing as a fee waiver due to inability to pay. This hurdle in and of itself will force many potential litigants to drop their cases.

Two. Less exposure. In the event that you actually do end up in an arbitration proceeding, realize that comparison studies of awards by arbitrators and courts have shown that arbitration claimants may only receive 20% of what they would have received in court. Furthermore, the scope of discovery in arbitration can be severely restricted which will limit the ability of the claimant to obtain necessary evidence. Finally, arbitrators do not have the power to enforce subpoenas, which then forces the claimant to file a lawsuit to get compliance.

Three. Prohibition of class-action lawsuits. An arbitration clause can be drafted to prohibit participation in a class-action lawsuit.

Four. Choice of venue clause. An arbitration clause can be drafted with a venue clause that requires arbitration to take place in a location convenient for you and your company.

Five. One-way requirement. An arbitration clause can be drafted to only require the employee or owner operator to arbitrate their claims, while preserving the right for you and your company to sue in court.

Six. No public record. Arbitrations are private and confidential proceedings unlike a court trial, which is public. Furthermore, there’s no court reporter present during an arbitration proceeding, and therefore no verbatim record. Finally, there is no publicly accessible website where people can go to learn of the dispute or its outcome.

Seven. Limited remedies and rights of appeal.  Punitive damages and injunctive relief are generally not available through arbitration.  Generally, arbitration is binding and the claimant has practically no right of appeal. Only in extremely limited circumstances can a claimant appeal an arbitration decision. I must stress that a court intervening and overturning an arbitrator’s decision is an extremely rare event.

Consider this recent example that I had the pleasure of dealing with at our firm.  Our client, a local trucking company, was being sued in small claims court for various damages, including back wages, by an owner operator. As a lawyer, I was not able to represent this client in small claims court, however, I did advise them on how to handle the situation.  I advised the employee representative to point out to the judge the arbitration clause in the contract Transportation Attorneys drafted, and which the claimant clearly signed.  The case was dismissed because the claimant had to proceed through arbitration and our client has not heard from the claimant again.

This is one example of many as to how Transportation Attorneys can protect your company from various claims and lawsuits. Call us or visit us at www.trucklawca.com today!

—

G. Spencer Mynko, Esq.

Attorney at Law

www.transportationattorneys.net

8311 Haven Avenue

Suite 220

Rancho Cucamonga, CA  91730

t: 909-480-3127

f: 800-709-7051

Obstructive Sleep Apnea

by gspencermynko

DON’T RELY ON YOUR DRIVER TO BE HONEST ABOUT HIS OR HER SLEEP APNEA PROBLEM
It’s well established that up to 40% of truck drivers have sleep apnea. A recent study out of Australia established that 41% of 517 drivers tested had obstructive sleep apnea(OSA). Yet only 4.4% reported a diagnosis of OSA. Another study revealed that drivers are more likey to under report daytime sleepiness. http://www.huffingtonpost.com/2012/09/04/sleep-apnea-truck-drivers-symptoms-fatigue-sleepiness_n_1844200.html. Truckers are well aware that reporting symptoms of OSA such as daytime somnolence could result in job loss. Accurate diagnosis of OSA often requires accurate information from the driver. If your drivers are not forthcoming about OSA symptoms, the consequences could be disastrous for your organization. Therefore it is imperative that you protect your company from the widespread and serious liability of untreated OSA. Please call today and take the necessary steps to protect your organization, your drivers and the public from OSA related accidents.
Obstructive Sleep Apnea (OSA) among Truck Drivers is now widely recognized as a major public health and safety issue. Anywhere from 28 to 40% of CDL holders suffer from sleep apnea, with approximately 40% of that group considered to have severeOSA. The common denominator in OSA related truck accidents is drowsy drivers causing death and mayhem on the road.
While the US Congress and State Legislatures are predictably behind the curve on this issue, Plaintiff’s Lawyers are predictably at the cutting edge and making law by filing lawsuits on behalf of victims injured or killed by drivers with OSA. Consider this case: http://www.prweb.com/releases/2011/12/prweb9043195.htm . Here, the trucking company settled a lawsuit for $3.25 million and acknowledged that their driver’s OSA was the cause of John Lindsay’s death. The precedent has been set: Trucking Companies can be held liable for damages caused by driver OSA.
Considering the enormous scope of the problem and the enormous potential damages that occur when big rigs crush whatever is in their way, responsible Trucking Companies have no meaningful choice but to protect themselves against such onerous and devastating liability. Indeed, now is the time for Trucking Companies to get ahead of the curve and protect themselves from financial ruin and the public from dangerous drivers. No longer can companies simply rely on drivers and the doctors who sign off on their well-being as adequate assurance that they do not suffer from OSA.
Most certification examinations of commercial drivers are simple, and relatively few drivers are disqualified. If these examinations are not done properly, however, the public can be exposed to potentially unqualified drivers. Should an accident occur, the physician who examined the driver may be found liable. In performing driver certification examinations, the physician’s primary responsibility is to the public. The Federal Motor Carriers Safety Regulations and supporting documents provide guidelines for the conditions that may be disqualifying and the conditions that may allow only temporary certification until better medical control is achieved. Some medical diagnoses, such as insulin-requiring diabetes mellitus, are automatically disqualifying, no matter how well the disease is controlled. Other conditions may require documented clearance from a specialist before certification is granted
Please act now and contact Transportation Attorneys to make sure your company is protected against driver OSA.

—
G. Spencer Mynko, Esq.
Attorney at Law
http://www.transportationattorneys.net
8311 Haven Avenue
Suite 220
Rancho Cucamonga, CA 91730
t: 909-480-3127
f: 800-709-7051
gspencermynko@gmail.com
spencer@transportationattorneys.net