Toledo Personal Injury Lawyer - Miscellaneous

Injured on the job in Sandusky? | Sandusky, Ohio workers compensation lawyers

Chuck Boyk — Wed, 04 Mar 2009 14:17:00 GMT

Our Ohio workers' compensation attorney Dale Emch discusses Ohio work injuries in his most recent Toledo Blade column, "Legal Briefs." If you or someone you know has been injured on the job, contact our office today for your FREE copy of The Ohio Work Injury Book. General legal questions to be considered in "Legal Briefs" can be sent to Ohio car accident lawyer Dale Emch at demch@charlesboyk-law.com or to 405 Madison Avenue, Suite 1200, Toledo, Ohio 43604.

Dear Dale: Assume someone has a worker's compensation claim with an allowable diagnosis of lumbar radiculopathy along with a psychiatric diagnosis. Can the worker be declared to have reached maximum medical improvement for the back injury and still keep open the psychiatric claim?

Answer: The quick answer is yes.

The worker's compensation system in Ohio is designed to pay for injured workers' medical bills and replace a portion of their wages if the injury renders them unable to work. Sometimes a worker sustains more than one injury and those injuries can resolve at different times.

You referred to maximum medical improvement, which indicates a familiarity with the worker's compensation system. Those folks speak a language that leaves the uninitiated scratching their heads and wondering what was just said. Maximum medical improvement means that the worker's injury is about as good as it's going to get. That doesn't mean the person has completely recovered, just that the doctors believe the person has healed to the extent possible.

Before workers reach maximum medical improvement, they can receive compensation called temporary total disability. (See, it's more lingo. People who spend a lot of time in the worker's compensation world speak in abbreviations like TTD and MMI.) Temporary total disability pays injured workers a portion of their wages while they're recovering. Once they reach maximum medical improvement, workers who haven't fully recovered may be eligible to receive compensation for any permanent injuries.

So, in your scenario, the worker you're speaking about has a back injury and a psychiatric issue related to the workplace accident. If the worker's back has improved to the extent possible - even if recovery isn't 100 percent - that portion of the claim can be resolved. If the accident led to a permanent back problem, the worker would be eligible for a payout based on the percentage of impairment or, if the injury renders the worker unable to gain sustained employment, the worker could receive compensation to replace his or her wages.

A resolution can be reached on the back injury while keeping the psychiatric claim open. If the workplace accident caused psychiatric problems that render the worker unable to work for a period of time, the person could receive temporary total disability. Or, the worker may be able to work, but needs to have any mental health treatment covered.

The worker's compensation system can be confusing at times, but there are resources that provide good information. The state's Web site can get you started. The address is www.ohiobwc.com.

Originally posted at InjuryBoard by Chuck Boyk

Ohio prescription error lawyers | Elderly can suffer medical malpractice from prescription errors

Chuck Boyk — Thu, 08 Jan 2009 16:35:35 GMT

Our Ohio medical malpractice lawyers see the devastating that effects that prescription errors can have on a family. Often times these fatal prescription errors are made during the care of an elderly or disabled person.

The Journal of Hospital Medicine reported that 49 percent of almost 500,000 hospital patients 65 and older have been prescribed one or more drugs known to be unsafe to older patients.

The Institute of Medicine reported that at least 1.5 million Americans are sickened, injured or killed each year by errors in prescribing, dispensing and taking medications.

Prescription errors can be characterized as any of the following:

• Prescribing the wrong medication
• Dispensing the wrong medication
• Prescribing the right medication in the wrong dosage
• Prescribing a medication that may have severe interactions with other medications the patient is currently taking
• Filling the wrong prescription or dosage
• Giving patients the wrong instructions for taking the medications
• Neglecting to monitor the patient's response to drugs
• Mislabeling the drug placed in a bottle and misuse of generic drugs

Our Ohio prescription error attorneys urge patients and caretakers to be extra cautious before taking any type of medication, whether it is over-the-counter or prescription, in order to prevent potentially fatal prescription errors. Talk to you doctor and your pharmacist about your medications, and make sure that the paperwork matches what you discussed.

Read all labels and make sure that the bottles have your name and contact information on it. Also make sure that your pharmacy is aware of all drugs that you are taking, in order to prevent adverse side effects or overdose.

Originally posted at InjuryBoard by Chuck Boyk

Ohio dog bite lawyers | Ohio dog bite injuries addressed by Ohio attorney Dale Emch

Chuck Boyk — Mon, 05 Jan 2009 16:24:00 GMT

Ohio dog bite lawyer Dale Emch discusses the flip side to dog bite injuries in his most recent Legal Briefs column. If you have a general legal question you would like to see addressed, including those on Ohio car accident settlements, Ohio work injury payments, or medical malpractice, contact Dale today at demch@charlesboyk-law.com.

I heard that a dog's owner isn't responsible for a dog bite if the person bitten was trespassing. So, if I was throwing the football around with my son in my backyard and the ball went into my neighbor's yard, would my neighbor be responsible if his dog bit me when I crossed into his yard to pick up the football?

Let me give you some of the basics about Ohio dog bite law before I zero in on your question. Under Ohio law, the owner, keeper, or harborer of a dog is liable for any injuries caused by the dog. It's a very strict rule that can have some harsh results. For instance, if my dog, Simon, ran out in front of a car, causing the driver to swerve off the road and hit a tree, I'd be responsible for the driver's injuries. And that would be true even if a friend was walking Simon for me and he got away when I wasn't in town. The law imposes strict duties on dog owners, including those who have dogs as headstrong as Simon.

Given the number of dog-bite cases our law office handles, I understand why the law has developed in this way. I've represented children who have been scarred for life and adults whose dog-bite injuries have caused them to be hospitalized for days. It would be little solace to those people if the owners could escape liability by saying, "Gee, our dog has never bitten anyone before, so we had no idea this would happen." There's no such thing as a free bite in the civil arena under Ohio law.

That said, people owning or keeping dogs do have certain defenses. Under the law, it's a defense if the person who was injured was committing or attempting to commit a criminal trespass, committing or attempting to commit any criminal offense other than a minor misdemeanor, or was teasing, tormenting, or abusing the dog. So, the law includes some common-sense protections for dog owners or keepers in limited circumstances.

The key to your question is whether your neighbor would have a defense because you were considered a trespasser. The Ohio General Assembly amended the law this year to change the defense of trespass to criminal trespass. That could be significant, and I expect the change will be the source of some legal wrangling over the next few years. Prior to the change in the law, a number of courts ruled that the trespass defense was available to dog owners whether the trespass was civil or criminal.

It sounds like a small thing, but it could be crucial in a lot of cases. The distinction lies in the difference between a criminal and civil trespass. Boiled down, someone commits a criminal trespass when they knowingly enter the land or premises of another - without privilege to do so - or remain on the land or premises after receiving notice in some form that they're on someone else's property. While there's more to the criminal code section dealing with trespass, that's the general gist.

For the purposes of a civil trespass, on the other hand, it doesn't matter whether the trespasser knew or received notice he was trespassing.

So, let's look at the distinction using the framework of your question. Let's say you had to jump a fence to get into your neighbor's backyard to retrieve the football. It would be hard to say that you didn't commit a criminal trespass because you knowingly entered your neighbor's property.

Let's look at a different scenario. Let's say you were playing football on someone else's property and you had no idea where the property line was. If you inadvertently crossed the property line and the property owner's dog bit you, I would argue that you hadn't committed a criminal trespass and the dog owner would be liable. Under the old version of the law, it didn't matter whether you knew where the boundary line was for the purposes of a civil trespass. If you were bitten on someone else's property and you had no privilege to be there, you were out of luck, at least for purposes of pursuing your claim under the state statute.

As an aside, the concept of privilege is important here. For instance, a letter carrier has the right to enter your property to deliver mail. So the trespass defense wouldn't apply. Or, in your scenario, if your neighbor had seen the ball go over the fence and waved you over to come get it, you wouldn't be a trespasser.

Originally posted at InjuryBoard by Chuck Boyk

Ohio dog bite lawyer Dale Emch on rental agreements

Chuck Boyk — Wed, 24 Dec 2008 17:15:00 GMT

Should you just give up if you don't get your security deposit back? Do you have any options?

Ohio car accident lawyer Dale Emch discusses rental agreements and deposits in his December 21, 2008 Legal Briefs column. If you have a general legal question on Ohio car accidents, Ohio dog bites, Ohio workers’ compensation, or a similar issue, contact Attorney Emch and demch@charlesboyk-law.com.

Dear Dale: I moved out of an apartment last year. Even though more than a year has passed, I have not been able to get my security deposit back. I've called the apartment complex's office more than 100 times, but they still won't return my deposit. Every time I call, they have good attitudes with a lot of excuses, but they never give me my security deposit. I'm really tired of calling them. Is there anything I can do?

Answer: I think most of us have rented an apartment or home at some point in our lives, and most of us have had a landlord hold back all or a portion of a security deposit, sometimes justifiably, sometimes not.

I shudder at the memory of my college roommates and I acting indignant when our landlord refused to give us our security deposit back many years ago. We were, to put it euphemistically, enthusiastic college boys. By the end of the year, the nice home we had moved into looked like something the city might consider condemning. An exaggeration, but you get the point. Though we really had no business getting our deposit back, my brother, Gregg, and a buddy of his - both newly minted lawyers at the time - pointed us to a law that put part of our deposit back in our undeserving hands.

State law dictates when landlords can retain security deposits, and our landlord didn't comply with the law. The Ohio Revised Code requires landlords to return security deposits within 30 days after termination of the rental agreement.

A landlord can withhold all or a portion of a security deposit for such things as unpaid rent, damage to the property, or violations of the lease. A landlord seeking to withhold any portion of a security deposit must provide written notice within 30 days of the end of the lease giving an itemized listing of reasons the deposit wasn't repaid, and a dollar figure associated with each item. Normal wear and tear on an apartment isn't sufficient reason to withhold a security deposit, and courts have ruled that landlords can't build in routine cleaning costs to the lease as justification for withholding security deposits.

State law provides a hammer tenants can use to whack landlords who don't comply with the security deposit code section. If a landlord fails to comply with the law, the former tenant can get double the amount owed to him, plus reasonable attorney fees.

Double damages and attorney fees are available but the law states that the tenant must provide the landlord with written notice of a new address where the security deposit or an itemized list of deductions can be sent. Though it appears that your landlord did not supply you with notice of why your deposit was being withheld, it's unclear to me whether you provided written notice of your new address.

If you did provide notice of your new address, you may want to consider suing the landlord in Toledo Municipal Court. It might take some time, but you've waited this long, right? It's clear that the landlord either feels justified in withholding your deposit or has no intention of ever coughing it up. Maybe having to pay double damages and attorney fees will cause the landlord to reconsider this behavior in the future. Trying to stop that kind of behavior is precisely why the law contemplates that financial hit. The legislature realized that without some sort of pain in the pocketbook, landlords could withhold security deposits for all sorts of shaky reasons.

If you haven't supplied your landlord with written notice of your new address, I'd do that immediately by certified mail, and then I'd contact an attorney if that fails to produce your security deposit.

Originally posted at InjuryBoard by Chuck Boyk

Ohio dog bite attorneys congratulate Lucas County Dog Warden

Chuck Boyk — Mon, 22 Dec 2008 17:20:00 GMT

Toledo's dog warden has just received special recognition. Our Toledo, Ohio dog bite attorneys would like to extend our congratulations to Lucas County Dog Warden Tom Skeldon.

Mr. Skeldon was just named Dog Warden of the year by the nation's only dog bite advocacy group, DogsBite.org. DogsBite.org was founded by a person who was a victim of a pit-bull attack in Seattle. We work closely with Mr. Skeldon, and appreciate the work he has done to keep children and adults safe from vicious dogs and dog bites.

DogsBite.org agrees with Mr. Skeldon's hard work. They write, "Tom Skeldon has vigorously worked to prevent horrendous pit bull maulings resulting in serious injuries or death of human beings, their domesticated pets and livestock."

If you or someone you love has been injured by an Ohio dog bite, contact our office to order your FREE copy of The Ohio Dog Bite Book. Our attorneys are available 24 hours a day, seven days a week.

Originally posted at InjuryBoard by Chuck Boyk

Learn the myths about alcohol that could help you prevent an alcohol-related car accident - Part I

Chuck Boyk — Tue, 25 Nov 2008 10:28:00 GMT

The holidays are a time for friends and family to gather and celebrate the season.

But the holiday season is also one of the deadliest times of year due to alcohol-related car accidents.

Increased consumption of alcohol during special events and parties held around the holidays causes drinking and driving to be more prevalent.

According to Mothers Against Drunk Driving an estimated 1,000 people die during the period from Thanksgiving to New Year’s Eve in drinking-related crashes.

The Insurance Institute for Highway Safety reports that most deaths involving alcohol-related car accidents occur on December 23rd and January 1st.

“Fatal car accidents are devastating no matter what the surrounding circumstances are,” Toledo, Ohio car accident Attorney Chuck Boyk said. “But when a drunk driver gets behind the wheel of a car and causes a preventable injury or death to someone else, the situation is even more tragic.”

Some see the holidays as a time when drinking is more socially acceptable due to the good mood of the season, and increased time spent with family and friends.

It is those people, however, that are at risk for falling for the myths of alcohol consumption that can lead to a car accident.

It’s a good idea, though, to educate yourself about the effects of alcohol consumption. Below are some myths about alcohol compiled by Mothers Against Drunk Driving and the Insurance Institute for Highway Safety.

MYTH:

As long as person only consumes beer or wine instead of hard liquor, the intoxicating effects are minimized.

FACT:

One 12 ounce can of beer, 5 ounce glass of wine or 12 ounce wine cooler contain the same amount of alcohol as 1 1/2 ounces of hard liquor.

Originally posted at InjuryBoard by Chuck Boyk

Toledo, Ohio car accident attorney Dale Emch on the custody rights of grandparents

Chuck Boyk — Tue, 25 Nov 2008 10:28:00 GMT

What do you do if your grandchild is taken away from your son or daughter and put under the care of the State? Do you have the right to take care of that child? Toledo, Ohio car accident lawyer Dale Emch discusses the custody rights of grandparents in his most recent Legal Briefs column. If you have a general legal question on topics such as car accidents, dog bites, or wrongful death, contact Attorney Dale Emch.

Dear Dale: We have an 8-year-old grandchild who lives several hundred miles away. Our son and her mother were never married. Our son passed away when our granddaughter was 6 months old.
Her mother recently lost custody of our granddaughter to the state. The state gave temporary custody to her mother’s ex-husband, who also has custody of our granddaughter’s half-brother. We were told if we want to get custody, a home study and background check would have to be conducted, and even then there was no guarantee our granddaughter would be placed with us.

Should we start checking into getting an attorney to help us if we want legal custody or should we just see how things play out?

Answer: The U.S. Supreme Court has held that parents have a fundamental right to make decisions affecting the care, custody, and control of their children. In certain instances, such as when a child may be in danger or when abuse or neglect can be shown, the state can interfere with that fundamental right.

When that happens, the state can seek custody of a child and make decisions about where the child should live. In custody situations, the default position of judges faced with these difficult cases is to make a determination as to what would be in the best interests of the child.

No exact formula exists to determine what would be in the best interest of a child. Some of the factors judges consider are the relationship the child has with his parents, siblings, or foster caregivers, the wishes of the child, and the stability of the proposed home setting. Judges hear evidence on those issues and try to make a decision that would be best for the child. That’s not an easy job in many cases.

In your situation, it seems that the major factor will be whether the state seeks to permanently terminate the parental rights of your granddaughter’s mother. That’s a huge step that courts don’t take lightly. Parents have a constitutional right to make child-rearing decisions, so a high burden of proof must be met in order to terminate a parent’s right to custody.

It’s possible that the state agency in charge of this case may want to reunite your granddaughter with her mother. If her mother has a drug problem or a mental illness that she might be able to address, the agency may have a plan that will allow her to regain custody if she meets certain requirements. If that’s the case, it seems likely that they’re going to look for the most stable situation for your granddaughter until her mother is able to regain custody. In such a scenario, the agency’s plan may even call for some type of controlled visitation with her mother.

If, however, the state seeks to terminate the mother’s parental rights, it’s going to try to find the best permanent home for your granddaughter. In that case, your granddaughter is old enough to express her wishes about where she wants to live and a person may be appointed by the court to weigh in on what would be in her best interests. The judge could determine that it’s best to stay with the mother’s ex-husband if he’s helped raise her, and because she has a half-brother.

On the other hand, the judge may give deference to your request for custody because of the blood connection between you and your granddaughter.

I think you’re probably getting the idea that there’s no way to determine where your granddaughter will be placed. For that reason, if you’re serious about seeking custody, you absolutely should retain a lawyer in the area where your granddaughter lives who has a lot of experience with child-custody issues. You need someone who understands the law and, preferably, someone who is well-known to the court handling the case. You might start by calling the bar association in the city where your granddaughter lives.

I’d recommend that you hire an attorney as soon as possible so you can explore whether it makes sense to intervene in the temporary custody situation if that’s possible. Showing an early interest can only help if the state seeks to terminate the mother’s parental rights. I would think it would be to your benefit if the judge and the agency know you’re in the picture and that you have a real desire to raise your granddaughter.

Originally posted at InjuryBoard by Chuck Boyk

ATV accidents, Yamaha Rhino accidents under scrutiny by U.S. government – Part III

Chuck Boyk — Fri, 14 Nov 2008 18:06:42 GMT

Our Toledo, Ohio ATV accident attorneys had help continuing their blog series on ATV safety from the co-founder of Concerned Families for ATV Safety, Sue Rabe.

The Rabe family lost their son, Kyle, to an ATV accident when he was only 10 years old. He had been riding for over a year and a half without any accidents. His parents write on the website that he was a very cautious, skilled rider wearing boots, gloves, several layers of clothing and a full face, approved helmet.

But all of those factors did not prevent an ATV accident.

“It’s devastating,” said Sue Rabe of Turner, Oregon. “Kyle was three months shy of his 11^th birthday. Until you have children, you won’t understand that they become your number one. They are everything to you.”

Sue Rabe fought hard to get Oregon Senate Bill 49, “Kyle’s Law,” passed, which would prohibit anyone under 12-years-old from operating an ATV. It would also put stronger restrictions on ATV riders between 12 and 15 years of age, and make helmet use mandatory.

While the bill did not pass, Sue believes that all of the lobbying and attention that Kyle’s Law received helped save lives.

“Last year not one child in the state of Oregon died in an ATV accident,” Sue said. “The year before, eight kids died. Apparently someone is listening.”

Stay tuned for our on-going series on ATV accidents as we report the information that Concerned Families for ATV Safety and Sue Rabe has provided us with.

Originally posted at InjuryBoard by Chuck Boyk

Toledo, Ohio car accident attorney Dale Emch on emotional distress

Chuck Boyk — Tue, 04 Nov 2008 15:19:00 GMT

This post, “Toledo, Ohio car accident attorney Dale Emch on emotional distress” has moved. Please click here to go to the new page.

Originally posted at InjuryBoard by Chuck Boyk

Toledo, Ohio car accident attorney on the importance of a living will

Chuck Boyk — Mon, 29 Sep 2008 08:30:00 GMT

Toledo, Ohio dog bite attorney Dale Emch discusses the importance of a living will and healthcare power of attorney in his Toledo Blade column, “Legal Briefs.” If you have a general legal question you would like to see answered in Attorney Emch’s column, such as an inquiry regarding dog bites, car accidents, or workers’ compensation, contact our office.

Dear Dale: I have been in poor health for the last few years and recently I took a turn for the worse, which required me to move in with my daughter. Can I give her the right to make decisions for me about my health and medical care if need be?

ANSWER: Most of us don't like to think about these issues, but whether you're elderly and in bad health or young and vibrant, it's a good idea to have a living will and health care power of attorney. It makes sense to have your attorney put them together at the same time you have a will drafted, but you actually can create a living will and health care power of attorney on your own.

Living wills provide peace of mind that your wishes at the end of your life will be followed. They're powerful documents that address your desires about what type of care you want to receive if you're not in a position to make the decision yourself.

A living will kicks in when you are terminally ill and unable to express your wishes or when you're permanently unconscious. In applicable situations, a living will addresses things such as a desire not to receive life-sustaining treatment, whether you want to be hooked up to machines to sustain your life, whether medical providers should attempt CPR, and when feeding and fluid tubes should be removed. At the same time you can still be given medicine to ease any pain.

Physicians will recognize living wills, but two doctors have to agree that the conditions mentioned above apply and that you will not recover.

A health care power of attorney makes a good companion to a living will. This document allows you to designate a person who can make health care decisions for you if you aren't able to make them for yourself. It's different than giving someone power of attorney over your finances or over other matters limited to a specific area.

The person given health care power of attorney can make the decision to withdraw or deny life-sustaining treatment provided that a physician determines that you won't recover and be able to make such decisions for yourself.

But unlike a living will, a health care power of attorney can apply to situations that aren't life and death. For instance, if you were temporarily knocked unconscious after being hit by a car while riding your bike, the person to whom you gave health care power of attorney can make certain medical decisions on your behalf, such as signing off on an operation or moving you to a different hospital.

Because you're living with your daughter, you should consider whether you're comfortable giving her health care power of attorney. If you are, have a detailed talk about your end-of-life wishes. The best way to ensure that your desires are followed is to have a living will, which would trump the health care power of attorney even if your designee wants to take another course.

I would encourage you and anyone else interested in exploring these issues to visit Lucas County Probate Judge Jack Puffenberger's Web site at www.lucas-co-probate-ct.org. Not only does it have a tremendous amount of information about these matters, but it has a link that allows you to download forms for a living will and health care power of attorney.

Originally posted at InjuryBoard by Chuck Boyk