Friday, February 22, 2008

Conflict of Interest in ERISA Benefit Claim

This question has haunted lawyers and workers alike for twenty years: "If an administrator that both determines and pays claims under an ERISA plan is deemed to be operating under a conflict of interest, how should that conflict be taken into account on judicial review of a discretionary benefit determination?"

Reading across the article,”The Supreme Court Tackles Conflict of Interest”, posted on February 20, which discusses some of the issues involved in this much-awaited verdict of the High Tribunal, I

As many of us already know, the Employee Retirement Income Security Act of 1974 (ERISA) (Pub.L. 93-406, 88 Stat. 829, September 2, 1974) is a federal law that sets the minimum standards for pension plans in private industry and “provides for extensive rules on the federal income tax effects of transactions associated with employee benefit plans”.

This law was created “to protect the interests of employee benefit plan participants and their beneficiaries by requiring the disclosure to them of financial and other information concerning the plan; by establishing standards of conduct for plan fiduciaries; and by providing for appropriate remedies and access to the federal courts”.

However, based on the article, the granting of most benefits claims under the ERISA have been delayed or blocked due to the issue of conflict of interest on the part of the employer who both act as “the decider and payer of a claim”.

However, the article made mention of one specific case, Firestone Tire & Rubber Co. v. Bruch, 489 U.S. 101 (1989), wherein the Supreme Court “effectively and severely limited the judicial discretionary power” of the employer. In ruling on the case, the High Court warned employers against “arbitrary and capricious” exercise of power or the alleged abuse of discretion against claimants. But the ruling failed to give enough guidance on how lower courts should act on similar cases brought before them. Hence, we are expecting the final decision now.

I think it is worth our time to wait and listen to the Supreme Court’s decision on the legal issue if only to settle once and for all the issue that has been bugging us for years.

Wednesday, February 13, 2008

From Criminal Action to Civil Litigation

Did you know that you may still file a course of action after losing from a crime lawsuit? Yes, crime victims may in fact resort to civil litigation in order to attain recovery and redress for their grievances.

A publication of the Department of Justice explains at length the principles surrounding a crime charge leading to a civil suit. This was entitled, “Civil Legal Remedies for Crime Victims”. It provides detailed information on another legal option for victims of crime.

Civil litigation is an effective and reliable legal remedy for crime victims whose perpetrators were not prosecuted or convicted by the prosecution. It is an extra tool which can provide victims of crime an alternative for financial recovery.

Aggrieved individuals of crime may find their way into the civil courtroom in order to obtain justice through monetary compensation which the criminal court has denied them by failing to convict the perpetrator. Since a criminal act consequently involves injuries, damages and losses to a victim, it actually results to a ground for personal injury.

A crime may result to a personal injury when the act causes any damages to the person, property, rights or reputation of the victim. Since personal injury covers a vast area of law, it affords crime victims of protection and rights as well.

Crime victims also suffer from the injuries sustained by a tort claimant. They go through the same physical, psychological, and financial injuries brought about by the wrongdoing of another. A crime victim has the right as well to demand and recover for the expenses he has incurred like therapy, medication, treatment, surgery and other medical-related costs. Other applicable general and special damages can also be awarded to a crime victim who decides to pursue a civil lawsuit.

As victims of both crime and civil tort, they have the legal rights to call on a legal counsel to represent them with their personal injury case. As plaintiffs, they must be able to prove liability through preponderance of the evidence. Personal injury trial attorneys help injured individuals prove tort liability of the criminal offender.

Friday, February 8, 2008

A Government’s Initiative to Benefit People with Disabilities

A positive start has been made by the U.S. Equal Employment Opportunity Commission. A report has been issued by the government agency only this month to oversee whether all the federal agencies has been complying on what Section 501 of the Rehabilitation Act of 1973 stated. This is regarding the active role of people with targeted disabilities in federal agencies and its activities.

To achieve the goal of making the federal government as the best employer when it comes to people with disabilities, its policies have been directed to give emphasis in employing workers with the following impairments:

  • Deafness
  • Blindness
  • Partial paralysis
  • Complete paralysis
  • Missing extremities
  • Paroxysmal disorders
  • Mental illness and retardation
  • Limb/Spine deformation

In addition, the said report was released to:

  • Educate the community about the government’s program for the disabled
  • Inform the government entities on the employment regression happening in their agencies
  • Propose possible solutions to resolve this problem and promote employment opportunities for people with targeted disabilities in the federal agencies

On the other hand, employment disability has been a long problem that is yet to be given a comprehensive solution. Although there are various laws adopted by the Congress to address this issue, many companies are still implementing some policies that single out people with disabilities. Thus, more and more of our disabled citizens are being left with no sufficient resources to sustain their basic needs.

Therefore, I think this particular program of the government thru the EEOC can promote better opportunities for people with disabilities – initially for the federal institutions and hopefully for private companies, later on. If this came into realization, the future of our disabled workforce and their families will certainly be more comfortable and assured.

I only hope that the federal bureaus as well as the state governments will respond positively by the said EEOC proclamation.

Tuesday, February 5, 2008

Recovery from Brain Injuries

Sometimes we see the results of wrong decisions only in the aftermath of our actions.

I just came across the article, “Ten Months After Tragic Car Crash Causing Brain Injury”, posted in October 19, which tells about a 19-year old woman’s struggle after a tragic car crash. The accident left her in coma and under serious condition for months while the two other passengers died instantly. The driver of the vehicle, his boyfriend, is in critical condition and facing trial for two counts of vehicular manslaughter.

According to the account, the accident happened one night on their way home. The driver of the car they were riding decided to race against another car, exceeding the speed limit. The driver lost control of the car and slammed into a tree.

The young girl was in coma for a week and when she woke up she found half her body paralyzed. . According to doctors, she had suffered brain damage to the left side of her brain in the accident, causing neurons to disconnect. She also was not able to swallow and doctors had to perform a tracheotomy, which left a tube in her windpipe for 90 days.

The young victim left the hospital three months later but regained only partial use of her body.

Brain injury is only one of the many injuries a victim may suffer from a car accident, which ranges from minor bruises to serious injuries or worst, death.

In general, brain injuries can lead to permanent damage or death. Most traumatic brain injuries are caused by severe impact to the head, like what happens during a vehicle accident or a slip and fall incident. In some cases, a medical negligence can also result in similar serious injuries. Brain injuries are often the result of another person’s negligence or recklessness.

In most accidents where a victim is often injured, the signs of a serious illness may not be detected right away. Sometimes it becomes evident only after a series of medical examinations.

To claim damages for seriously-damaging injuries caused by negligence, you need to consult a lawyer who has the skills and experience in handling cases involving brain injuries.

Friday, February 1, 2008

Things To Ponder Before Buying An Investment

Many of us try to make future savings by buying shares as investments, which is a good business sense. However, some people are wary of buying shares, especially when these are considered minority stakes in a corporation.

To allay the fears of people who have minority shares in business, I will share with you an article I read, “Minority Shareholder Rights in California”, posted in March 2007. The article explains how the rights of minority shareholders are protected in California’s corporate setting.

According to the article, minority shareholders enjoy an important right which cannot be compromised by any corporate bylaw or majority shareholder action. This valuable right is the right to access of information.

Under California laws, shareholders have the right to inspect the corporation’s two important books – the record of shareholders and accounting books, records, and minutes of proceedings.

Why is this important? Because having access to this information will give you a hint on what is happening with the company and determine whether you are losing or gaining from your investment.

This is an important right a minority shareholder should keep in mind as protection for his investment.

Added to this, if a lawful inspection is refused, the courts may intervene and compel the corporation to forfeit the requested information.

Buying shares and stocks often involve risks. Here’s what to consider before buying shares or investments:

  • That you are part owner of the company – A company’s gain or loss is yours too.
  • Price shares may fluctuate in the short run.
  • Invest for a long-term plan. In buying shares, it is always good to buy low and sell high, which means that you should buy shares when the price is low and sell them high when demand increases.
  • Decide first how much you want to invest – In finance, you have to remember that the greater the investment, the higher the risks involved.
  • Research and do some homework before deciding on buying a certain share.

There are many ways of knowing your other rights as minority shareholders in a corporation. You can consult a business lawyer who is knowledgeable in corporate issues to give you more essential information on the matter.