What’s the Process to Get VA Benefits?

Posted on: April 10th, 2013 by RWarner No Comments

By Robert Stevens

If you’re a military veteran who has a service-related disability, you may qualify for benefits from the Veterans Administration (VA). Though the VA is severely back logged with claims, you can’t obtain benefits without first filing for them. If you’ve filed and you claim has been denied, you may be able to appeal that denial. If you filed a claim and disagree with the disability determination, you may be able to appeal the determination

1) File your claim.

This can be done at a local VA office, VA medical facility or online at www.vba.va.org

2) Decision

The local office makes a decision to allow or deny your claim. If it doesn’t go your way, you can appeal it.

3) Notice of Disagreement (NOD)

If you not satisfied with the decision, write a statement to the local VA office stating you disagree and are seeking an appeal. This is the Notice of Disagreement. It must be sent to the VA within one year of date of the mailing of the denial of your benefits. You may request the file be reviewed by a Decision Review Officer from the local VA office. This person will review the entire file and can hold a hearing on your claim.

4) Statement of the Case (SOC)

After the office receives the NOD, it will create a Statement of the Case (SOC). It’s a detailed explanation of the facts, laws and regulations used by the VA in making its decision. The local VA office will mail the SOC to you, along with a VA Form 9 (Substantive Appeal Form).

5) Form 9

To finish the internal VA appeal process, this form must be filled out and sent back to the local VA office. It needs to include the benefits sought, the mistakes in the SOC and whether or not you want a personal hearing. The VA must get the Form 9 within 60 days of the date the SOC was mailed, or within a year of the date of the mailing of the original denial, whichever is later.

6) Personal Hearing

The appeal will be made with, or without, a personal hearing, which would be with either a VA official at the local office or someone from the Board of Veterans’ Appeals. If you want the hearing, it will be a meeting with you, your attorney and the person from the VA deciding your case. The hearing with the board member can be in Washington, DC, through a videoconference at the local VA office, or a board member may be present at the local office.

These are informal hearings, but you’ll be asked to take an oath to tell the truth. You’ll have the opportunity to provide information. Your attorney can ask you questions to help you explain your case. The VA official might also ask you questions. A decision won’t be made at the hearing. A transcript of the hearing will be part of your file. The information will be reviewed and a decision made.

7) Decision

The decision will be to allow your claim, deny it or remand it for further investigation. If the claim is denied, you can try to reopen it at the local VA office, ask the Board to review it again because of a clear and unmistakable error, file an appeal at the U.S. Court of Appeals for Veterans Claims, or accept the decision.

Because of the importance of ensuring that veterans receive the benefits to which they are entitled, the Department of Veterans Affairs requires that any attorney who represents a claimant must become accredited to do so. Robert Stevens, Esq., of Szaferman, Lakind, has been accredited by the Department of Veterans Affairs to help veterans through this daunting and often frustrating process. He can be reached at (609) 275-0400.

 

 

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Obtaining a Temporary Restraining Order (TRO)

Posted on: March 19th, 2013 by RWarner No Comments

By Robert Panzer

Victims of domestic violence who require the protection of a restraining order may apply for a Temporary Restraining Order (TRO) with the Family Part of the Superior Court. The police may also assist in obtaining a TRO before a municipal court judge on holidays, weekends and other times when the Superior Court is closed.

When applying for a TRO, victims should list all predicate acts of domestic violence that form the basis of the Complaint. In addition, a detailed account of all prior acts of domestic violence should be included in the Complaint. Under the Domestic Violence Act, prior history of domestic violence is both relevant, and often crucial, in determining whether a FRO should be granted.

• Prior history may include incidents that did not result in the police being contacted and did not result in the issuance of a TRO or criminal complaint;

• It’s important to include all acts and prior acts of domestic violence because failure to do so may preclude introducing evidence or testimony regarding the particular incident at the final hearing.

After a victim applies for a TRO, a hearing is conducted, usually without the defendant (the person accused of domestic violence) being present. Due to the fact that these hearings are unopposed and the Court hears only the victim’s version of events, TRO’s are usually granted so long as a prima facia case of domestic violence is established. A TRO provides victims immediate protection by prohibiting the defendant from having any contact or communication with the victim, as well as other ancillary relief that the Court deems necessary.

After a TRO is issued and served on a defendant, a final hearing is scheduled to determine whether a FRO should be entered. At the final hearing, both parties present testimony and evidence regarding the allegations of domestic violence. If a Court determines that an act of domestic violence has been proven by a preponderance of the evidence and that the issuance of a final restraining order is necessary to prevent further acts of domestic violence, the Court will issue a FRO.

Although the issuance of a FRO does not constitute a conviction of a criminal offense, New Jersey Courts have recognized that it, “has serious consequences to the personal and professional lives of those who are found guilty . . .” For example, once a FRO is entered, a defendant is fingerprinted, is required to forfeit firearms and weapons and is included in the central registry maintained by the Administrative Office of the Courts. Furthermore, violation of a TRO or FRO constitutes contempt, and a second or subsequent non-indictable domestic violence contempt violation requires a minimum jail term of 30 days imprisonment. The issuing Court may also impose a number of other wide-reaching sanctions.

Due to the serious consequences that can result from the issuance of a FRO, our Courts have reiterated that the Domestic Violence Act is intended to assist those who are truly victims of domestic violence and that the process should not be trivialized. Furthermore, our Courts have stressed that “domestic contretemps” or marital bickering should not be mistaken for matters of consequence warranting the protections afforded by the Domestic Violence Act.

Due to the fact that certain relief afforded by FRO’s impact issues that are often the most contentious between divorcing spouses (custody, parenting time and financial support), our Appellate Division has expressed concern that parties may attempt to misuse the Act in order to gain an advantage in a companion matrimonial action. Clearly, the Domestic Violence Act was not intended for such purposes and our Courts serve as “gatekeepers” to filter out complaints that fail to constitute true domestic violence.

If you have any questions about domestic violence and the legal process, it is important that you seek legal advice to be sure that you are informed of all of your rights in light of the serious consequences involving domestic violence law in New Jersey. You can reach me at (609) 275-0400.

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Obtaining a Final Restraining Order (FRO)

Posted on: March 11th, 2013 by RWarner No Comments

By Robert Panzer

In cases of domestic violence, there are legal proceedings that can protect victims. In my prior blog, I started discussing Final Restraining Orders (FRO). There’s a two-pronged test that must be satisfied for a victim to obtain a FRO.

1. A victim must establish that a “predicate act” of domestic violence occurred. An act of domestic violence includes one or more of the following: assault; terrorist threats; kidnapping; criminal restraint; false imprisonment; sexual assault; criminal sexual contact; lewdness; criminal mischief; burglary; criminal trespass; harassment; and stalking.

2. It must be established that a domestic violence restraining order is necessary to protect a victim from immediate danger or further acts of domestic violence.

A plaintiff (the victim) is responsible for establishing his or her case by a preponderance of the evidence, which is a lower burden of proof than that required in criminal cases. In addition to the lower burden of proof, domestic violence hearings are conducted relatively quickly and parties can’t seek pre-trial discovery (information, testimony and documents) without prior Court approval.

In order to be eligible to obtain a restraining order, one must qualify as a “victim of domestic violence.” A victim includes:

• A person who is 18 years or older (or is an emancipated minor) who has been subjected to domestic violence by a spouse, former spouse, or other person who is a present or former household member,
• Any person, regardless of age, who has been subjected to domestic violence by a person with whom the victim has a child in common, or with whom the victim anticipates having a child in common, if one of the parties is pregnant, and
• Any person who has been subjected to domestic violence by a person with whom the victim has had a dating relationship.

There’s also a limitation on whom a defendant can be. He/she must be 18 years of age (or be an emancipated minor) in order for a victim to pursue relief under the Domestic Violence Act.

In my next blog, I’ll write about how the process works.

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New Jersey Domestic Violence Law

Posted on: February 26th, 2013 by RWarner No Comments

By Robert Panzer

It’s an unfortunate fact that domestic violence is a pervasive problem both in New Jersey and throughout the United States. In a 2011 report, the New Jersey State Police stated that 70,311 domestic violence offenses were reported by police that year. That averages to an alleged act of domestic violence every seven minutes and 29 seconds. It’s important to understand the legal process and protections afforded to victims, and those accused, of domestic violence in New Jersey. I’ll be writing a series of three blogs on the issue.

In New Jersey, there are two mechanisms for providing protection to victims of domestic violence. Victims can pursue protection under both criminal and civil law. A victim may pursue filing criminal charges against a defendant by contacting the police. In such cases, the State is required to prove beyond a reasonable doubt that a criminal act occurred. The police are required to file charges if a victim exhibits signs of injury, even when victim refuses to do so.

In addition to criminal charges, a victim of domestic violence may pursue protection under civil law. Under the Prevention of Domestic Violence Act, N.J.S.A. 2C:25-17, et seq., a victim can request a Final Restraining Order (FRO). A victim need not pursue criminal charges in order to obtain a FRO and vice versa.

A FRO prevents a defendant from engaging in any contact or communication with the victim and prohibits subjecting the victim to any further acts of domestic violence. A FRO may also award a party exclusive possession of a residence, address custody and parenting time issues and award monetary relief (including emergency support for minor children and the victim). The Court can also grant many other protective measures and “grant any relief necessary to prevent further abuse.” 2C:25-29b(1)-(18).

I’ll write more about FRO’s in my next blog.

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Medical Malpractice: The Need to Show Cause

Posted on: February 21st, 2013 by RWarner No Comments

By Steven Blader

My prior blogs covered two elements of malpractice. If the plaintiff has shown the generally accepted standard of care for the particular situation and that the medical professional deviated from that standard, does that mean the plaintiff will win the case? Not necessarily.

The plaintiff also has the burden of showing, to a reasonable degree of medical probability, the treating professional’s negligence was the proximate cause of the injury.

• Proximate cause: The primary cause of an injury, not necessarily the closest cause in time or space, nor the first event that sets in motion a sequence of events leading to an injury. It produces particular, foreseeable consequences without the intervention of any independent or unforeseeable cause.

• Reasonable degree of medical probability: the general consensus of recognized medical thought and opinion concerning the probabilities of conditions in the future based on present conditions.

For instance, if the claim is an infection was caused by a negligently performed operation, the plaintiff would have to show, to a reasonable degree of medical probability, that something about the negligent act(s) involving the operation caused the infection. The defendant might claim the infection had some other cause independent of the operation. It might have been lurking in the plaintiff’s body, undetectable, until after the operation. Perhaps the plaintiff ate, drank or breathed in something that caused the infection.

Plaintiff would also have to show that there were damages caused by the malpractice: economic loss, medical bills, emotional distress, pain, suffering, loss of enjoyment of life, disability and impairment.

These cases must be filed within two years of a plaintiff discovering, or two years from when the plaintiff reasonably should have known, the injury and that negligence played a role in it.

As you can see from these three blogs, medical malpractice can be a complex area of law. The outcome of cases are very fact specific, and you need to talk to an experienced medical malpractice attorney to get a good picture of your situation, your rights and how they might be protected. If you have any questions, you can reach me at (609) 275-0400.

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Medical Malpractice: What Plaintiffs Must Show

Posted on: February 11th, 2013 by RWarner No Comments

By Steven Blader

As I wrote before, medical malpractice basically boils down to establishing what the applicable standard of care is, whether the care was up to that standard and that the plaintiff suffered harm as a result.

How does a court decide what the standard of care is? Generally, it is the customary and proper methods of diagnosis or treatment generally recognized and accepted by that particular branch of the medical profession. What does that mean?

In one case, the New Jersey Superior Court, Appellate Division, stated that standard doesn’t necessarily mean it’s what all the other medical professionals are doing in those particular circumstances. This particular case involved a plaintiff who claimed he contracted a liver disease from blood not properly screened by a blood bank. The blood bank claimed they did the same tests other blood banks used, so they lived up to the standard of care. The court disagreed. It stated, the issue isn’t what the average blood bank did to test its blood. The standard is what a reasonable blood bank should have tested for, given the reasonably available testing alternatives at the relevant time. Estate of Elkerson v. N. Jersey Blood Ctr, 342 N.J. Super. 219 (App. Div. 2001). ‘Everybody else is doing this’ is not enough to be an effective defense.

How can you tell a doctor has deviated from that standard? Given there may be several different approaches to help a patient, what should a physician do? It’s not malpractice if the treating medical professional chooses from generally accepted courses of action and uses reasonable exercise in judgment. The professional has a duty to exercise the degree of care, knowledge and skill ordinarily possessed and exercised in similar situations by the average member of the professional in his field. Schueler v. Strelinger, 43 N.J. 330 (1964). If the treating professional’s actions and decisions fall into this range, even if a mistake occurs and harm is done, there’s no malpractice.

Unless a clear mistake was made, many facts may need to be determined to evaluate these kinds of cases. This could potentially take much time and effort, but it’s something we’ve done for a long time and it’s something we do very well. If you have any questions, you can contact me at (609) 275-0400.

Though we’ve covered a lot of ground, I’ll discuss another important part of medical malpractice in my next blog.

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Employee or Independent Contractor? That is the question.

Posted on: February 11th, 2013 by RWarner No Comments

By Melissa Ruff

Whether you employ someone, or work for someone, your classification under the law is very important. An employer may save a lot of money working with an “independent contractor” (lower taxes, no benefits, no workers compensation or unemployment insurance premiums), but if that label is a legal fiction, the potential costs to an employer are steep.

If a complaint is filed by the supposed independent contractor with state or federal agencies, or he/she sues the employer, the employer may face claims for unpaid taxes, wages, and benefits, along with civil fines, penalties, attorneys’ fees, costs and interest. A criminal investigation, along with criminal charges and penalties, may also ensue.

How can you tell which is which? New Jersey courts have turned to common law (law developed by the courts over the years) to come to the conclusion that an employee (or “servant”) is employed by an employer (or “master”) “to perform service in his affairs whose physical conduct in the performance of the service is controlled or is subject to the right to control by the master…An independent contractor is a person who contracts with another to do something for him but who is not controlled by the other nor subject to the other’s right to control with respect to his physical conduct in the performance of the undertaking.” Sodexho Operations, LLC v. Director, Div. of Taxation, 21 N.J. Tax 24, 39-40 (2003) (citing Restatement (Second) of Agency, § 2 (1958)); see also Seavy, Handbook of the Law of Agency § 10 at 5.

Courts consider a number of factors in deciding the person’s status, including:

  • The extent of control which, by the agreement, the master may exercise over the details of the work;
  • Whether or not the one employed is engaged in a distinct occupation or business;
  • The kind of occupation, with reference to whether, in the locality, the work is usually done under the direction of the employer or by a specialist without supervision;
  • The skill required in the particular occupation;
  • Whether the employer or the workman supplies the instrumentalities, tools, and the place of work for the person doing the work;
  • The length of time for which the person is employed; The method of payment, whether by the time or by the job;
  • Whether or not the work is a part of the regular business of the employer; Whether or not the parties believe they are creating the relation of master and servant; and
  • Whether the principal is or is not in business.

Sodexho Operations, LLC v. Director, Div. of Taxation, 21 N.J. Tax 24, 40 (2003) (citing Restatement (Second) of Agency, supra, § 220(2)).

For someone to make the argument that they are an employee, not an independent contractor, they don’t have to show actual control of the “physical conduct in the performance of the service” but only that the person’s work “is subject to the right to control by the master.” Id. at 39.

If there is a written contract between the parties stating one is an independent contractor, it’s just one factor that’s considered. Just because a contract states someone is an “independent contractor” that doesn’t necessarily make it so. If you are an employer who thinks these kinds of contracts will shield you from liability, you may be making a very expensive mistake.

These kinds of cases are decided on a case by case basis, in a fact specific manner. If you are an employer using independent contractors to perform work for you, you should consult an attorney to make sure it is being done properly to avoid a laundry list of potential fines, fees, penalties and costs. If you think you are an employee misclassified as an independent contractor, you should consult an attorney to go over the facts of the situation to see if you are owed wages, taxes and benefits.

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Divorce & Small Business: Imperfect Together

Posted on: February 8th, 2013 by RWarner No Comments

By Jeffrey Epstein

If you’re facing a divorce, you may see it as the failure of a once promising relationship, or the start of a new beginning.  If you own a business and are getting a divorce, you may see it as a major complication to your business plans.  During a divorce, a spouse may seek an equitable interest (a court ordered, partial ownership, created in the interests of fairness given the particular circumstances) in the business.  For the business owner, there are many issues that need to be considered and addressed.

The court system in New Jerseyhas very liberal discovery rules (which allow both parties to obtain relevant information and documents pertaining to a case).  A judge may allow a party to have access to virtually any document pertaining to the ownership and value of the business.  Any employee with knowledge of these issues could be questioned.  Unless there is a Protective Order of Confidentiality, these documents and information will be public record for all, including competitors, to see.

Both parties should understand a business entity should be protected.  A party may request a Receiver or Fiscal Agent be appointed to ensure the business is being run properly and not just drained of revenues for the benefit of one of the parties.  A business owner needs to be aware this kind of appointment may happen.

As part of a business plan, there should be a buy/sell agreement for partners or principals.  A predetermined method of a party is essential to avoid costly valuation issues.  Though it’s not binding on a spouse seeking an ownership interest in the business, a court should find it relevant (but not determinative) of a shareholder’s interest in a small, closely held business. 

Courts will try to determine the business’ “fair value” (not “fair market value”).  This is appropriate when a closely help corporation is involved, with no ready market for its shares.  Valuation relies heavily on the cash flow of a business.  Then there are “add backs” (payments for pension plans, insurance, travel, auto expenses, etc.) to the calculation.  This is to come up with the actual income of the titled spouse to determine figures for spousal support and the actual value of the shareholder’s interest.

An issue that shouldn’t be overlooked is taxes.  The federal tax code allows for a tax-free transfer of assets or liquid funds as compensation for an equitable interest in a business.  However, if a business owner sells his/her share of a business, it’s a taxable event.

How much of an equitable interest might the spouse get?  Typically 25% to 40%, though it could be more or less.  Even if the business owning spouse started it prior to the marriage, or became an owner through an inheritance, the other spouse may seek equitable distribution of the appreciation in value of the business during the marriage.

It’s in everyone’s interests they be rational and reasonable in compensating the spouse who will no longer be involved with the business, but who has an equitable share of it.  The ability of the business to function and generate cash flow must be protected, because it will support the family and the titled owner.  The sooner the parties realize that the better.  Once that realization is met, the divorce process should proceed easier and faster, to everyone’s benefit.

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Introduction to Medical Malpractice

Posted on: February 5th, 2013 by RWarner No Comments

By Steven Blader

I’ve been helping clients who’ve suffered serious injuries for over 40 years.  Part of my work involves medical malpractice.  These can be very difficult, heart wrenching cases, because in good faith, the client sought some kind of medical treatment and as a result, ended up in a worse condition because of someone’s negligence.

However, just because a patient is harmed during medical treatment doesn’t mean that malpractice took place.  I will be writing a series of blogs discussing medical malpractice cases to help you understand what they are and how they are judged.

Medical malpractice boils down to a deviation from the generally accepted standard of care and resulting injuries or damages.  To show that deviation, two things must be proven:

   > That standard of care must be established, which is the customary and proper methods of diagnosis or treatment generally recognized and accepted by that particular branch of the profession, and

    > A departure from that standard, under circumstances which justify the conclusion the required degree of care was not met.

 Clark v. Wichman, 72 N.J. Super. 486 (App. Div. 1962).

Although this foundation to these cases can be spelled out in a couple sentences, how this standard is applied can be very complex.  Opinions can vary as to the applicable standard of care and whether or not it was breached.  As an experienced trial attorney, I can navigate these waters for my clients.  If you have any questions, contact me at (609) 275-0400.

 In my next blog, I’ll go into more detail on how medical malpractice works.

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Future Challenges in New Jersey’s Post-Sandy Beachfront Development

Posted on: November 6th, 2012 by RWarner No Comments

By Robert Gladstone and Bruce Sattin

Super Storm Sandy struck the New Jersey shoreline and its barrier islands on October 29. There was some tragic loss of life and massive loss of public and private property. It’s clear to all that the congested hodge-podge of dwellings, rooming houses, businesses and boardwalks is now history, and continued development of the type we fondly recall is at an end.

Already, government planners dream of ponderous new protective jetties, dramatic beachfront setbacks, raised dwelling construction and mighty protective sand dunes growing along the oceanfront. But let’s face reality. The dreams of government, planners and environmentalists surely conflict with the determined cry from property owners: “We shall rebuild!”. Similar tales from recent history from the Mississippi, the Gulf coast and the Colorado forests are instructive. The people demanded that they be permitted to rebuild, and – fortified with insurance settlements — they did.

It is in this context that the rights of property owners collide with those in government who would restrain or redirect redevelopment. The bureaucrats’ goal: to achieve their view of the best interests of those very property owners. Several areas of the law are affected by this collision. Government clearly has the ability to take private property pursuant to its right of eminent domain, or “condemnation”, for the broader good. If a governmental entity “takes” property in condemnation, it must pay the owner “just compensation”, which has been interpreted as fair market value. The owner may envision a premier, million-dollar beachfront property as it stood on October 28. The government sees a small lot which we all now know is subject to serious damage and flooding. If a governmental entity should decide to condemn the property for the broader public good, it must offer a fair price, and that price, and the manner in which it is developed, are subject to challenge in the courts before a jury.

Besides condemnation, another tool available to the government is to alter building codes and zoning regulations to require sturdier, flood- and wind-resistant construction. But once again, there are constraints on government’s powers. Zoning regulations must be reasonably drafted to achieve a legal purpose. Further, existing properties can only be required to comply with new construction codes if a structure suffers damage equal to more than half of its improvement value or if the owner decides to expand the building. Once again, the ability of government to require new and perhaps prohibitively expensive construction techniques and materials is subject to legal challenge in local Boards or the courts.

There are also proposals to restrict the availability of flood insurance in flood-prone areas or to dramatically raise the premiums. This may have the effect of denying mortgage loans for reconstruction which are not available without flood insurance or of greatly increasing the costs of building and owning shore properties.

Finally, there are social considerations. A planner’s ideal of thinly developed barrier islands with expansive beaches, protective dunes and storm-resistant structures would deny seashore residence to all but a very wealthy few. If government at any level is to move boldly to reconstitute New Jersey’s seashore communities, it must do so rapidly. Property owners are already arranging for reconstruction and renewal. Whatever action is taken, it must be taken with consideration of the interests both of property owners and society at large. The face of New Jersey will change dramatically.

We are here to help make that change as painless as possible for our clients. If we can help you with post-Sandy rebuilding or insurance issues, you can reach us at (609) 275-0400.

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