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David Blair Nitka

David Nitka’s Answers

10 total

  • I live in California and I am on approved SSDI. Can I be lawfully terminated?

    I have been out of work for a little over a month due to a severe back injury that now requires invasive surgery. I have not claimed work related because I value my job and this type of actioned is always "shunned upon." I have now been laid off a...

    David’s Answer

    You have a complex problem and goes to why a person injured at work should file a notice of injury (DWC-1) form immediatly, even if you take no action. Now you have a multitude of issues.

    If you claim your injury is work related, your employer can claim the post-termination defense and deny your case.

    If you claim your injury is not work related, then your employer could terminate you if they are unable to accomadate you.

    Certainly you would be entitled to FMLA time but during FMLA time you are not paid and after FMLA your employer need only take you back if they can accomadate your work restrictions.

    You may certainly file for unemployment right now. You should check and see how unemployment will affect your SSDI checks.

    You may file a workers' comp claim. I would recommend getting a lawyer because the claim will almost certainly be denied.

    You may also have a right to certain other civil actions for ADA/FEHA violations.

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  • Can I seek for an acupuncturist and pay it myself even if I am in a workers comp case?

    hi, I have been in a workers comp case since April 2010. Everything takes really long with them, so I have started to consider to search for an acupuncturist myself and pay for it. But I want to make sure that I won't get in trouble with insurance...

    David’s Answer

    You can treat on your own for your workers comp injury with any doctor you choose. You can seek reimbursement for your treatment. If you can show that your treatment was medically necessary and there was unreasonable delay by the insurer you may get reimbursed.

    If your case goes to trial your accupuncturist records may(though it is unlikely) be excluded from evidence.

    If you decide to treat on your own with an accupuncturist, you should get a prescription for the treatment from a reputable orthopedist. Then have the accupuncturist forward their records back to the ortho for review and comment. Now the accupuncturist treatment is part of the medical record for the case. Then file a medical lien(green lien) for your treatment with the accupuncturist. All of this will help protect your rights as an injured worker.

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  • Car is totaled, cousin was driving no lisence, can i sue since my insurance wont cover me?

    My insurance wont cover me and i owe 9700 left on my vehicle, my cousin fled the scene and has no liscense. My insurance which is full coverage said they wont cover anything. Can I sue my cousin to have him be responsible for my debt?

    David’s Answer

    You can sue your cousin. You will be responsbile for the debt. Your cousin will owe you. If your cousin has no money and no assets it may not be worth the trouble.

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  • What to do if your lawyer has messed my case up?

    long story short my lawyer and his dr. talk you to death but as it turns out don't listen so they failed to write stuff you tell them down but the dr. was stedly writing down something !#@* down the ins. company won'ts to leve out dr. bills due to...

    David’s Answer

    You should speak with a different lawyer. I would recommend speaking with your friends or business associates about lawyers they recommend. A good lawyer referal can be very valuable. A bad lawyer referal can be problematic. Avvo offers lawyer reviews as well which may be a place to start looking.

    It is also reasonable to ask the attorney or doctor to cut their fees if you feel that you are not getting properly compensated. Then again if you had a very time consuming case, the lawyer may have earned his fees.

    There is a good chance your lawyer has done everything right and you may be getting what you are owed. If there is a low limit insurance policy from the other driver, or there is a question about fault which is keeping the offer low. Without reviewing the facts of your case, it is difficult to determine the outcomee.

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  • Workers Comp Case - Insurance coverage

    About 15 years ago, in Los Angeles CA I won a workers comp case. Part of my suit included medical insurance for my injury. My pain has now resurfaced but the problem is I have lost all my records. I dont remember my attorneys name either. How can ...

    David’s Answer

    An experienced Workers' Compensation attorney will have access to EDEX. EDEX is a state system that keeps track of all filed workers comp claims going back to about 1960. Any worker can be looked up by social security #. EDEX will list any prior attorneys as well. It is not necessary to contact your prior attorney to have a new attorney take your claim.

    Once an EDEX check is run, there are state wide copy services which can retrieve old records. The problem with your case is that most records are only maintained for 7 years.

    The question may be whether this pain is related to your old claim or is a new pain related to a more recent event, either work or non-work related.

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  • Does sub-contractors that only work for one company need to have there own workman comp

    who has to provide the workman com insurance

    David’s Answer

    Most probably yes. The General likely has workers comp for his EMPLOYEES. You are an independent contractor of the General so you are most likely not covered by his WC insurance. In rare occasions a General will cover the subs, such as when the site requires an umbrella policy for all parties. This usually only happens in large municipal projects, think stadiums and courthouses.
    Regardless, it is good practice to carry your own insurance. If there is a lapse in coverage by the General or the General makes an exclusion without your knowledge you will be left bare. Get the coverage, sleep soundly at night, and work safe so you dont need to call your insurer.

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  • Can a CA work comp back round check keep me from being rehired if i worked for the after my suit in the first place?

    I was injured 7 years ago and settled in 08. I since worked for this moving company and had moved on to a different field. now i am trying to return to the moving company and they are now doing WC back round checks. it has been 6 weeks so far for ...

    David’s Answer

    • Selected as best answer

    California Labor Code Section 132a prohibits discrimination against an employee for filing a workers' comp claim. I doubt the 132a claim you have described would be successful. Your question is unclear in that it sounds like you filed your job application. Then your employer did a workers' comp check on you to see about past claims. Now it has been 6 weeks and your potential employer is saying that they have not hear back from the state.
    If this is the current status it doesnt make any sense. A workers comp check of an employee takes 24 hours or less through the California EDEX system.
    Also, if your employer is screening potential employees based on their past injuries this could be a violation of ADA and FEHA laws. It is generally unlawful for an employer to screen out employees based on disability. So long as the disability will not interfere with the essential elements of job performance.
    You should consider speaking with a lawyer about your rights under ADA or Feha. You also should consider researching whether or not to request an EEOC/DFEH investigation from the state or feds.

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  • Un paid wages,fired given partial final payment, not full tips check

    fired, given pto and 16 hours due,not the 400 dollars in tips, took 16 days to get it, filed with labor board it wasnt hours not paid but gratuities, do i still get to get something

    David’s Answer

    You also have a claim under Labor Code Section 203. If the employer doesnt pay you your full check(plus gratuties) immediatly upon discharge, penalties accrue against the employer. You are paid a full days wage for each day your payment is late for up to 30 days. If your case is before the labor commissioner be sure to raise your right to penalties for late payment.

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  • Where can I obtain a free "motion to set aside judgment form (C-35)?

    Mtg Co & Lender foreclosed, Thier process was fraudulant. Being evicted, answer detainer, went to court. got no judgment, lender attorney didn't show up personally, was on the phone (unusual) ,judge want certified copies from lender over the phone...

    David’s Answer

    Mr. Pickard, (prior answer), is correct in that attorneys will not give away motions. Preparing motions is what we do and how we make money. Your question is unclear about which court your case is being heard in and the posture of the case. Nonetheless, in California there are form motions which are approved for use by the court. The can be found here:
    Other courts have similar forms i.e. bankruptcy court. Best of luck in resolving your issue.

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  • Is the action of the School negligent?

    I removed my daughter for medical depression, the school was advised. all they ever said was there is a space here for her when she returns. We provided the school with the location of her care and the cirricula that she would be studying. We w...

    David’s Answer

    I believe you have posted your question in the wrong forum. Personal Injury refers to car accident and slip and fall type cases. The type of legal question you are asking refers to administrative law and/or education law. You should consider searching avvo for a lawyer that handles education law or contacting the Sacramento County Bar Association.

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