Workers’ comp may cover injuries related to advanced age

A 73-year-old receptionist at a tourism bureau reached over to pick up some travel brochures and injured her back, becoming totally disabled.

She argued she was entitled to workers’ compensation because she had a work-related injury. But the tourism bureau claimed her injury wasn’t caused by leaning over to pick up the brochures, but was instead caused by her age and by osteoporosis that was the result of her age.

Who’s right? A medical examiner found that 60 percent of the injury was caused by reaching over, and 40 percent was due to her age and osteoporosis that made the injury more likely.

But the California Court of Appeals said this amounted to age discrimination. A company must take employees as they are, and can’t avoid workers’ comp liability simply because they are older.

On the other hand, if osteoporosis was a contributing factor, then some allowance has to be made for this pre-existing condition. The court ordered a new medical analysis.

With more and more senior citizens in the workplace, this sort of issue can be expected to arise more frequently, and employers might want to consider accommodations for older workers that will reduce the risk of injury due to age-related conditions.

Can a condominium ban smoking inside units?

There’s a growing trend among condominium owners to ban smoking – not just in common areas, but inside individual units and in outdoor areas as well.

Bans on smoking in common areas have been around for years. But a ban on smoking in individual units is a relatively new idea – and there are many questions about its legality.

Recently, an upscale 118-unit condo in Minneapolis banned all smoking within the building as well as on private balconies. The town of Belmont, Calif. adopted an ordinance prohibiting smoking in all condo units in the city. A new Utah law permits condo associations to ban smoking, and the attorney general of Hawaii recently issued an opinion that such a ban would be allowed under both state and federal law.

However, there have been almost no court cases involving these bans, so we don’t really know yet whether they’ll hold up if they’re challenged.

Quite apart from the legality of such a ban, some condo owners worry about an adverse effect their property values. With a down real estate market, excluding all smokers from the pool of potential buyers could make it even harder to sell.

On the other hand, a total ban might make condo units very attractive to potential buyers who don’t want to breathe second-hand smoke.

So far, there’s only been one court case involving an “in-unit” smoking ban. It involved a four-unit condo in Colorado, where the owners of one unit were heavy smokers and the owners of the other three units voted to make them stop.

The smokers sued, but a trial judge upheld the ban.

First, the judge said, the condo documents (like those in many condos) prohibited nuisances. Specifically, they prohibited “any practice…which is a source of annoyance to residents or which interferes with the peaceful possession and proper use of the property.” And smoking could be considered a nuisance if the smoke infiltrated other units, the judge said.

Second, the condo association had acted reasonably because the other

three owners had first tried to compromise with the smokers and had spent thousands of dollars installing air filters and other methods to avoid the smoke, to no avail.

Third, there is no “constitutional right to smoke.” Although people generally have a right to privacy in their homes, this is not true if their activities harm others, the judge ruled.

If you live in a condo that is considering a smoking ban, below are some issues to consider.

A ban that occurs as a result of an amendment to the bylaws is more likely to be upheld in court than one that consists merely of a regulation adopted by the board of trustees. Boards usually have more limited power to tell owners what to do inside their units. Of course, a bylaw amendment is more difficult to obtain, since it typically requires a vote of the unit owners, and often requires the agreement of two-thirds or three-quarters of the owners.

A ban that is imposed by a developer is more likely to be upheld, since everyone who buys a unit will know about the ban from the beginning and can’t claim that their rights were taken away.

A condo that wants to avoid litigation should consider “grandfathering” current smokers. That’s what happened in the Minneapolis condo. Current smokers could continue to smoke, but once they sold their unit, the new owners would have to abide by the ban. This type of compromise might be necessary to obtain a bylaw amendment or to fend off a lawsuit from an owner who smokes.

Do you want your trust to benefit your heirs’ surviving spouses?

An heir to the Johnson & Johnson fortune created a trust to benefit four children. The trust was set up so that it would provide money to charity for a period of years, then be distributed to the four children and their spouses.

By the time the distribution came around, one of the children (named Mary) had died. Her third husband, Martin, who was married to her when she died, claimed that he was a “spouse” who was entitled to collect from the trust.

The other children objected, saying that since Mary was dead at the time of the distribution, Martin didn’t qualify as a “spouse.”

The case went to the New Jersey

Supreme Court, which determined that, in this case, the word “spouse” included a surviving spouse.

This is another good example of why it’s important to be as clear as possible in drafting trust documents.

Many people wonder about all the “legalese” in those documents, when it seems to them that what they intend is obvious. But once a person has passed away, what they wanted isn’t necessarily so obvious, and they can no longer be consulted. So it’s best for the document to be as clear and detailed as possible, to avoid misunderstandings – and lawsuits.

Woman gets $5.2M settlement for injuries caused by driver using cell phone

A woman in Georgia won a $5.2 million settlement from a paper company whose employee caused an accident while talking on a company cell phone.

The collision pushed victim’s car onto its side, and pinned her arm between the road and the car. Her injuries required multiple surgeries, skin grafts and muscle harvests in an attempt to save her arm. The procedures failed and doctors were forced to amputate almost up to her shoulder.

Settlement negotiations focused on whether the driver was actually on the phone at the time of the accident. The defense maintained the driver hung up her phone before getting on the highway. A passing truck driver, however, refuted that claim.

An expert witness testified that the driver’s lack of memory of the last mile of travel before the accident occurred is a common feature of the phenomenon of “inattention blindness” caused by cell phone use. He also testified that cell phone users are more impaired while talking than while driving under the influence of alcohol.

The cell phone element was essential to winning a larger settlement because Georgia has a state law that prohibits

“excessive distraction” while driving. Also, the driver’s employer requires its employees to use hands-free headsets while driving, and the driver did not do so at the time of the accident.