Russ Eagle

Murfreesboro lost a good attorney last week. I only knew him for a couple of years but I was always impressed by his work ethic and his ubiquitous presence in court. He provided some good advice for me on several matters, was always kind and approachable. This notice was written on his behalf.

Unlawful employer drug tests

Employers can legally test employees for illegal drugs under certain conditions, but a Tennessee employer has found itself as the defendant in two suits alleging unfair and unlawful testing for prescription drugs. This article outlines what could be a warning to many employers about what can be done and what can cross a line.

"The fundamental question is, 'Was the testing job-related, and was there some business necessity to implement the testing program?' " Pattison said. "As a general rule, you can't just ask someone, 'Are you taking prescription medications?' "

What Are the Time Limits for Filing a Charge of Discrimination?

All laws enforced by EEOC, except the Equal Pay Act, require filing a charge with EEOC before a private lawsuit may be filed in court. There are strict time limits within which charges must be filed:

A charge must be filed with EEOC within 180 days from the date of the alleged violation, in order to protect the charging party's rights.

This 180-day filing deadline is extended to 300 days if the charge also is covered by a state or local anti-discrimination law. For ADEA charges, only state laws extend the filing limit to 300 days.

These time limits do not apply to claims under the Equal Pay Act, because under that Act persons do not have to first file a charge with EEOC in order to have the right to go to court.

However, since many EPA claims also raise Title VII sex discrimination issues, it may be advisable to file charges under both laws within the time limits indicated.

To protect legal rights, it is always best to contact EEOC promptly when discrimination is suspected.

Federal employees or applicants for employment should see Federal Sector Equal Employment Opportunity Complaint Processing.

Typically, I can meet with a prospective client and discuss with them the validity of the case and even help them with this first step. Once we receive the right to sue letter, or after a period of time has elapsed and the investigation has not completed we can request the right to sue letter, then we can file suit on that client's behalf.

Small estates in Tennessee

Usually, when a person dies, the decedent's family must open the estate and go through probate court. Many states, Tennessee included, provide for an easier and quicker alternative for smaller estates.

Tennessee law, Tennessee Code Annotated 30-4-102, provides for simplified probate when the value of the decedent's estate, under most circumstances, does not exceed $25,000. TCA 30-4-103 sets out the process by which a small estate can be administered.

Among the many differences between opening a probate in the usual manner and filing an affidavit for a small estate is that the filing fee for the small estate affidavit is much less expensive.

Blue Raiders beat Maryland again

I must take a Sunday hiatus from legal discussions to post this about our Blue Raiders who are making life rough for Coach Friedgen in College Park. Great game!

This from Adam Sparks of the Daily News Journal -
COLLEGE PARK, Md. — MTSU players hope Saturday's 32-31 win over Maryland is a step toward a bowl game later this season.

But after upsetting the Terps, an ACC member, for the second straight year, there was a different bowl game on the lips of the Blue Raiders.

"(The coaches) said this was our Super Bowl," MTSU senior cornerback Alex Suber said. "It was a big game. (Defensive coordinator Manny Diaz) put the stats up. There aren't too many schools — ACC or anybody, who come in here and beat Maryland. But we did. I feel like we came out to prove a point. They said they had a chip on their shoulder — revenge — but we feel like revenge is more of a fan type of thing."

MTSU sophomore Alan Gendreau made a 19-yard field goal on the final play to cap the Blue Raiders' second victory over Maryland in two years. The first win against the Terps in Murfreesboro last season was regarded as the best win in school history."

Tennessee Nursing Home abuse and neglect

Essentially, there are three types of nursing home cases: abuse, neglect, and medical malpractice.

Nursing home abuse is defined by federal law (42 C.F.R. 488.301) as the "willful infliction of injury, unreasonable confinement, intimidation or punishment with resulting physical harm, pain or mental anguish."

Abuse may involve:
Assault and battery (including sexual assault and battery)
Virtual imprisonment or unreasonable or unnecessary restraints
Deprivation of food, drink, medicine, or other basis necessities
Use of drugs not approved by a medical doctor or the knowing prescription of improper medication (usually some type of sedative in nursing home cases)
Mental abuse

Neglect differs from abuse in that abuse is done with intent; whereas neglect is the result of negligence and indifference. The standard for nursing home neglect is whether the caregiver acted (given the nursing home patient's situation or condition) as the ordinary reasonable provider in the same position would. It can be defined as failing to care for a resident to the degree, which a reasonable person in the same position would exercise. Federal law (42 C.F.R. 488.301) defines nursing home neglect as the "failure to provide goods and services necessary to avoid physical harm, mental anguish or mental illness."

Neglect may include any of the following:
Negligent physical or mental neglect
Negligent failure to prevent infection or bed sores (which require the patient to be monitored and regularly adjusted)
Negligent failure to alert medical doctors of medical problems
Negligent failure to prevent dehydration and malnutrition

Finally, medical malpractice is where a medical doctors does not provide the same level of care to someone who is elderly and in a nursing home than they would to other patients, effectively denying them adequate care. That many nursing home facilities are understaffed is no defense if a patient receives less than standard care.

Wills and Trusts

A Last Will and Testament is the fundamental estate planning document. A Will provides a basic set of instructions to your named executor as to how your assets should be distributed after your death. You make final provisions for your heirs and beneficiaries.

A Living Trust is similar to a Last Will and Testament, yet allows for the transfer of assets without the need for Probate or Estate Administration. Typically a living or inter vivos trust is created to avoid probate or at least to allow some property to pass outside of an estate. Many people use life insurance policies, or a combination of life insurance and trust instruments to do the same thing.

Avoiding probate can save thousands of dollars in an estate and can more easily distribute property and provides greater flexibility for the trustee or owner.

I have a friend who is a financial planner who has commented that many people postpone meeting with him because they think they need to have more money before they can invest. Postponing setting up a trust can be just as misguided. For a few hundred dollars, I could save your estate, and thus your heirs and beneficiaries, thousands.

Durable General Power of Attorney for Health Care

This is a very important and powerful legal document. Before executing this document you should know these important facts.
This document gives the person you designate as your Agent (the attorney-in-fact) the power to make health care decisions for you. Your Agent must act consistently with your desires as stated in this document.
Except as you otherwise specify in this document, this document gives your Agent the power to consent to your doctor not giving treatment or stopping treatment necessary to keep you alive.
Notwithstanding this document, you have the right to make medical and other health care decisions for yourself so long as you can give informed consent with respect to the particular decision. In addition, no treatment may be given to you over your objection, and health care necessary to keep you alive may not be stopped or withheld if you object at the time.
This document gives your Agent authority to consent, refuse to consent, or withdraw consent to any care, treatment, service or procedure to maintain, diagnose or treat a physical or mental condition. This power is subject to any limitations that you include in this document. You may state in this document any types of treatment that you do not desire. In addition, a court can take away the power of your Agent to make health care decisions for you, if your Agent:

(1) authorizes anything that is illegal, or

(2) acts contrary to your desires as stated in this document.

You have the right to revoke the authority of your Agent by notifying your Agent or your treating physician, hospital or other health care provider orally or in writing of the revocation.
Your Agent has the right to examine your medical records and to consent to their disclosure unless you limit this right in this document.
Unless you otherwise specify in this document, this document gives your Agent the power after you die to:

(1) authorize an autopsy,

(2) donate your body or parts thereof for transplant or therapeutic or educational or scientific purposes, and

(3) direct the disposition of your remains.

If there is anything in this document or about the process that you do not understand, you should ask a lawyer to explain it to you.

Tennessee Divorce

There are two basic ways one can take in order to obtain a divorce in Tennessee.

One is a no-fault divorce based upon the grounds of irreconcilable differences. To obtain an irreconcilable differences divorce in Tennessee, it is necessary that you and your spouse enter into a property settlement agreement or a Marital Dissolution Agreement. Additionally, if you have children, it will be necessary for you to enter into a Parenting Plan which will provide for co-parenting time for each parent and child support.

Once the divorce is filed, there is a sixty (60) day waiting period before the divorce can be granted when you do not have minor children. In the event you have minor children, there is a ninety (90) day waiting period. The spouse filing the divorce will need to attend the final divorce hearing.

In an irreconcilable differences divorce, it is not necessary for you to bring any witnesses. The divorce will become final thirty (30) days after the final order is entered.

The other method to obtain a divorce is by filing on grounds such as inappropriate marital conduct, adultery, desertion, etc. Under this method, a Complaint is prepared which you sign, and is served upon your spouse. The spouse will have thirty (30) days in which to respond to the Complaint.

In any divorce based on grounds other than irreconcilable differences, it will be necessary that you prove your grounds by testimony in open court. In addition, the court normally requires at least two witnesses appear to corroborate your testimony. At the final hearing, the court will make a decision as to the matters of co-parenting time, child support, alimony, and division of property.

In the event it is necessary, a court often has a temporary hearing called a pendente lite hearing for the questions of temporary support, temporary alimony, temporary attorney’s fees, and temporary co-parenting time, during the pendency of the divorce case. This is not a final hearing. The court’s decision is only in effect until the final hearing. It is just an initial determination made with a minimum amount of proof. The most frequent reason to have a pendente lite hearing is to determine temporary child support until the divorce is granted.

A divorce based upon irreconcilable differences is usually the preferable means of obtaining a divorce if you and your spouse are able to reach an equitable property settlement agreement. The legal fees that you and your spouse will incur in a contested divorce are substantially more compared with the minimal charges for divorces based on irreconcilable differences. In addition, you and your spouse can normally reach a more equitable and more agreeable property settlement than the court will make for you.

Herniated Disc

What is a herniated disc?

Spinal discs are round cushions that lie in between the vertebrae of the spinal column. These discs basically act like shock absorbers between the vertebrae, cushioning them when we contort our bodies in everyday life. These discs have an external shell and a liquid substance in the middle. The metaphor often used with juries in personal injury cases is that the discs are like jelly donuts. If a disc is injured as the result of the trauma of an auto accident, the "jelly" may leak out of the disc. If the inner core of the disc extrudes back into the spinal canal it may impact a nerve root. The weak spot in a disc is directly under the nerve root and a herniated disc can put great pressure on the nerve, which can cause pain to radiate throughout the person's body.

Where the pain radiates to in the body depends on where the disc herniation occurs. When a patient has a symptomatic herniated disc, the pain is not in the disc area; rather, the disc herniation is pinching a nerve in the spine that causes 'radicular' pain. This radicular pain is typically described as a pain that shoots through the body, usually to one area in particular, since each nerve in the spine is connected to a particular area of the body. This pain can be nerve root pain, leg pain if the herniation is in the lumbar (back), or arm pain from a cervical (neck) herniated disc.

A herniated disc is rarely diagnosed in the emergency room after an auto accident. This is because the disc is invisible on an x-ray. Accordingly, a patient typically needs a CT scan or magnetic resonance imaging (MRI) test so that a physician can pick up a disc herniation. A discography, myelography, or an electromyography are also used to diagnose herniated discs. It is worth noting that the experts agree that these diagnostic tests cannot diagnose the injury victim's pain. There is no clear cut correlation between the degree of the hernination and the patient pain symptoms because there are so many other variables involved.

Who can get Social Security Disability benefits

A person is entitled to receive Social Security Disability (SSD) benefits when they are no longer able to perform a substantial gainful activity, or SGA, as the result of a physical or mental impairment that is expected to last at least 12 months, or possibly result in death.

To satisfy the definition of disability used by Social Security, a person's disability or impairment must meet or equal the level of severity described by the Social Security Administration (SSA). The SSA lists and documents lots of conditions, ranging from arthritis and high blood pressure to asthma, heart failure, and depression. Satisfying the SSA criteria will guarantee a disability approval. However, it is very difficult to win a disability approval; thus the great frequency of early denials. Most individuals will qualify for social security benefits another way---basically where their disabling condition is severe enough that they are unable to perform their past work while earning at least a substantial monetary amount each month. Currently the SGA amount is $900.00 before taxes.

Additionally, in this process, it must be concluded that the individual is not capable of doing certain "other work". What exactly is other work? Other work that a claimant might possibly do must be related, according to the SSA, to several factors: a person's age, level of education, and the type of work they did in the past. For example, a person with a 10th grade education who cannot do their past work will not be expected to perform other work that goes beyond their educational limits. Likewise, individuals with mental impairments (low IQ or depression or anxiety) will not be expected to perform other work that requires detailed attention and concentration. Finally, individuals who are physically incapable of doing more than sedentary work will never be expected to perform work that requires medium (lifting 50 lbs on an occasional basis) or even light (lifting 25 lbs on an occasional basis) exertion.

Foreseeability and negligence

A blackletter rule of law is that failure to take reasonable steps to prevent unreasonable risk of injury from reasonably foreseeable accidents is negligence. Tennessee follows many jurisdictions with a balancing test to determine the extent of the precautions required. The burden of providing the precaution must not be greater than the potential harm.

For example, it would be unreasonably burdensome for a merchant to hire bodyguards to personally escort patrons from the parking lot, through their store to shop and then back to the visitors vehicle. The cost of such precaution would be prohibitive even though it would probably guarantee the shopper's safety. However, if a business is located in an area known as a high crime area, in other words it is foreseeable based upon past acts of crime that more crime may occur, and that business takes no action whatsoever to safeguard those it has invited is probably negligent when a crime does occur and a patron is injured.

This article from Florida illustrates some of these principles.

Tennessee divorce

This article from Knoxville talks about how many divorces damaged by infidelity may still survive. Roughly 90% of the divorces I have handled have had at least allegations of infidelity. I think along with money troubles, that is the most frequent ground for divorce.