Litigation Conferences 2010
litigation conferences 2010
The Unification of Family Law Jurisdictions to Deal With All Relationships
Under the Commonwealth Constitution, the Federal government has the power to make laws with respect to marriage. As such, the various States and Territories historically were left with the power to make laws dealing with matters arising out of the breakdown of de facto relationships, including parenting and financial issues.
In the mid 1980s various States and Territories conferred upon the Federal government the power to deal with parenting issues arising out of de facto relationships. Previously, contested parenting issues involving children from de facto relationships were dealt with in the State Civil Courts. After the Federal government acquired the power to deal with children of de facto relationships, all parenting disputes, whether arising from marriage or de facto relationships, were then dealt with in the Family Court jurisdiction.
Financial issues arising out of marriage relationships have always been dealt with in the Family Court. However, financial issues arising out of de facto relationships were historically dealt with in the State and Territory Civil Courts.
To add to the confusion of which jurisdiction to turn to in contested financial cases after the breakdown of a relationship, the Federal government established the Federal Magistrates Court in 2000. The idea was for the Federal Magistrates Court to deal with the simpler cases, whereas the Family Court was to deal with the more complex cases. Loose guidelines indicated which was the appropriate jurisdiction to deal with any particular case. However, those guidelines were not clear, and not consistently applied.
In late 2008 the Federal government passed legislation to amend the Family Law Act after various States conferred upon the Commonwealth the power to deal with financial matters arising out of de facto relationships.
This meant that any de facto relationship which broke down after 1 March 2009 would be subject to the new laws under the Family Law Act. Those new laws would treat financial issues arising out of the breakdown of de facto relationship on a par with marriage cases. Previously the economically disadvantaged party in de facto relationships usually achieved a poorer result in property settlements than in equivalent marriage cases.
This was seen as a sensible move as potentially de facto relationships which had broken down involving contested parenting and property issues could end up having parenting issues litigated in the Family Court/Federal Magistrates Court and financial issues in the State Civil Courts. Now all issues arising out of the breakdown of de facto relationships will be litigated in the Family Court or Federal Magistrates Court.
In a move which will relieve confusion over which jurisdiction in which to commence proceedings, it has been announced that in 2010 the Family Court and the Federal Magistrates Court will merge. The practical result of this will be that any contested parenting or financial issues whether arising out of marriage or de facto relationships, will now all be dealt with in the one Commonwealth Court rather than having to navigate the minefield of State Civil and Commonwealth Courts.
Getting Tech-nical
Since his hiring at Texas Tech in January, Tommy Tubberville wasted no time grabbing the Red Raider football program, turning it upside down and shaking it with authority.
Categories: Litigation Tags: blog, litigation conferences 2010, news, oreilly, technology, web2.0
Insurance Litigation Specialist
insurance litigation specialist
“Independent” Medical Exam? Try Insurance Medical Exam
At any time after a workers’ compensation claim is filed, not just during the litigation phase, the employer or insurance company can schedule a medical examination with a doctor of their choosing. Insurance companies call these IMEs (Independent Medical Examinations) but you shouldn’t. In practice, there is nothing independent about these exams. These physicians typically examine many, many injured workers for the same insurance companies over and over. In addition, many times they charge the insurance carrier five hundred dollars per examination, as opposed to eighty-five dollars they would actually charge a patient coming for treatment. They then generate a lengthy report that is sent to the insurance company or its attorney. There is no doctor-patient privilege, and the claimant is not there for any therapeutic or medical reason.
I call these “litigation exams” or “insurance medical exams” because that is what they are – a defense examination for litigation.
There are a handful of physicians in Washington, D.C. (and I suspect in every community) who earn an extremely good living performing these examinations for insurance companies. You can imagine the “opinions” that most of these doctors generate. They may say that the injured worker was never hurt, or the injury was unrelated to his or her employment, or the condition he or she currently suffers from was not related to the injury, or the injury caused only a temporary aggravation of some underlying condition, or the injury is not as bad as the claimant and his or her physician believe, or that the claimant can return to work, et cetera. Sometimes the reports look virtually identical – only the name of the injured worker seems to change.
Depending on the doctor chosen by the insurance company, the entire exam may last only a few minutes. I always advise my clients to write down the time they go into see the doctor, and the time that they’re with the doctor, and the time that the doctor spends speaking with them and actually examining them. Typically, this is only a few minutes. Nonetheless, a five minute exam can result in a five page single-spaced report by this physician that the carrier can use to stop or deny benefits. In my experience, the more desperate the carrier, the more notorious the litigation or insurance doctor they will go to for an exam.
As with anything in life, there are exceptions to this rule. Occasionally, an insurance company will hire a legitimate physician to evaluate an injured worker, and that physician will take the time to conduct a thorough examination that can actually be helpful in future treatment decisions. Regrettably, these legitimate examinations are few and far between. Many times the insurance companies are much more interested in limiting or denying benefits and the amount of money they have to pay, instead of offering legitimate treatment options.
The general rule in the District is that a defense or litigation examination can be conducted once every six months in any given specialty. If there is a change in the injured worker’s condition, for example, there is a recommendation for surgery, the insurance company has the right to an examination before the six-month period. In addition, if a claimant is seeing several specialists, such as an orthopedic surgeon, a neurosurgeon, and a pain management specialist, the carrier could have one examination per specialty approximately every six months. There are no hard and fast guidelines on that issue, but that is the general practice.
Unfortunately, injured workers who are not represented by an experienced attorney get taken advantage of by insurance companies. Many times, they will tell an injured worker that he or she must attend multiple examinations with physicians in the same specialty over a short period of time. This simply allows the insurance company to obtain more and more evidence that they will ultimately use to deny or limit an injured worker’s benefits.
THIS WEEK’S CASELAW
Rome II (Regulation (EC) 864/2007) introduced a new uniform EU-wide regime for determining the law applicable to non-contractual obligations. Of issue in this case is its temporal scope.
Categories: Litigation Tags: blog, insurance litigation specialist, news, oreilly, technology, web2.0