93.1. Kiss FM – Ask A Lawyer – Part 2 – April 21, 2022

Mike: “Ask a Lawyer” Michael Gopin’s our guest, Steve Kaplowitz is taking the place of Tricia…

Steve: Nobody could take the place of Tricia, just by the way. There’s no way. It’s impossible.

Mike: They’re so sweet. Steve Kaplowitz is sitting in for Tricia.

Steve: There you go. I like that.

Mike: People can sit in, they just cannot replace her. You are absolutely right.

Steve: And by the way, Tricia, I’m using a microphone windscreen so you don’t have to worry about cleaning your mic when you come back. It’s…

Michael: I would anyway if I were her.

Mike: She’s gonna Lysol the hell out of it. Trust me. She is.

Steve: Okay. All right. You ready for Harold?

Mike: Ready for Harold.

Steve: Here we go. Harold says, “I missed almost three weeks of work after I slipped and fell at my work. I was never paid or recompensated after they said they would. I walked into the building today, and I was fired for missing so much work. What options do I have here, Mr. Gopin?”

Michael: Well, you have two options. The first question we need an answer is, did they have Texas workers’ comp? Okay? If they had Texas workers’ comp, you would be able to file a workers’ comp claim against your employer for the injury. You would then also be able to have a lawsuit for the wrongful termination if we can prove that that’s the reason they fired you, for being injured on the job.

So if they have Texas workers’ comp, you go after the workers’ comp, and then we can talk about the wrongful termination case, just get the entire facts of that. Now, if they did not have workers’ comp, then you can file a lawsuit against the employer directly for a non-subscriber action, they call it. In that type of case, you would have to prove that the employer was at least 1%, just a tiny bit negligent in causing the accident that happened in the first place. I have no facts about…you know, I guess you slipped and fell so the question is, did they know about the substances on the floor? You know, were you warned? And all these kinds of questions that we’d have to look at to be able to prove that the employer was negligent.

In that case, when they do not have coverage, you would not have a wrongful termination case. So only if they have workers’ comp, can you sue them for wrongful termination. Otherwise, they are exempt.

Mike: Can I say this, and I’m going back to the letter D, how D is it of the boss to fire you when you come back? Like, couldn’t they have just done that before? Like, say, “Hey, man, don’t bother coming back. You’ve missed too much work.” Like, couldn’t they just call you? Like, why wait until you get to work?

Steve: You know what, they did that to me years ago?

Mike: Did they?

Steve: Yeah.

Michael: Nobody could have fired you. No way.

Mike: You’ve been here for like 100 years. What do you mean just…

Steve: I came out of college in ’95. And I was working at the radio station and at Camelot Music back at Selma Park Mall, remember the little bottom Camelot?

Mike: Yeah. Yeah. Yeah.

Steve: Anyway, new manager comes in, and he’s trying to clean house. I leave town for a wedding in Austin, and I call in to get my hours. Well, they gave me the wrong hours, so I didn’t show up when I was supposed to. I come in the next day when I think I’m coming in and they fire me on the spot.

Mike: Oh. Yeah.

Michael: Wow

Steve: Because they said I missed my shift. I said, “Well, I was given the wrong information.” They didn’t want to hear about it.

Michael: And you want to hear the legal answer to that question?

Mike: Yeah.

Steve: Yes

Michael: The employer could do it. Even if they made a mistake. They in Texas, you can fire them for any reason that you want to. Even a bad reason like that.

Mike: So like for Harold’s question, I mean, like, wouldn’t that be their defense? “No we didn’t fire him because he missed so much work because he was hurt, we fired him because he missed work.”

Michael: Well, you miss work because of a workers’ comp injury, which happened on the job there, so that’s a delicate situation. There’s a law that then protects the worker for that.

Mike: So what if he said, “I fired you when you came into work because you were wearing a blue shirt, and today’s redshirt day?

Michael: Well, I mean, the employee can try that, and the jury would have to decide what the truth is.

Mike: Oh, wow. Oh, man. Okay.

Michael: So they will do that for sure. And they will make up all these, you know, lies or mistells about your work performance. “Oh, yeah. He was always late for work, he never did well.” All those kinds of things to avoid liability.

Mike: Okay.

Steve: Naomi writes in, “I can’t believe you don’t take cases for toxic baby food regarding a much older child. He ate baby food until he was 5 years old, couldn’t handle anything else. And later, I had to switch him from regular baby formula and milk to Isomil. To this day, he has trouble dealing with others and authority. Can nothing be done about him, my son?”

Michael: Well, depends on what his diagnosis is. Yeah, we certainly can take a case of an older child. The question is, does he have autism from the baby food or ADHD? So Attention Deficit Disorder, or autism, and then he has a potential case. If it’s not diagnosed that way, then there’s going to be an issue with taking your case. So when you say he has trouble dealing with others and authority, that’s a little vague for me. So I don’t know if he’s got Attention Deficit Disorder or potential autism case. If he’s been diagnosed, yes, we can and we’ll help you, Naomi.

Mike: Then it would have to be like an actual diagnosis from a psychologist, psychiatrist, or whatever?

Michael: Correct. Exactly. Yeah, or a physician.

Mike: Physician, yeah. Okay. So the age is not the issue?

Michael: No, the age is not the issue.

Mike: Okay.

Michael: The diagnosis.

Mike: All right. “Ask a Lawyer” with Michael Gopin on Mike and Tricia mornings.

Steve: Xenia writes in, “Are you guys still taking hernia mesh cases? I had one implanted a while ago, and another just added around the same area. I’m in horrible pain, and I can barely stand.”

Michael: Yes, we still are taking hernia mesh cases, but you need to have a revision before we’re able to help you. So you have to have had the surgery and then had it fixed, basically. Either taken out or something else done with it, for a second surgery, for us to have a potential case for you.

Mike: Oh, and this one sounds like a different surgery.

Michael: Yeah, it sounds like they maybe had the hernia mesh, but they haven’t revised it.

Mike: Yeah.

Michael: They had a second hernia mesh problem…

Mike: In a different area or…

Michael: …in a different area of the body. You know, there’s groin, there’s inguinal, there’s all different types. So it sounds like there was two surgeries with two hernia meshes, but no revision. So in order to have a case, you’d have to have a revision. So I would talk to your doctor, see what they are suggesting because you don’t want to be in horrible pain about this.

Mike: Yeah, boy. Yeah, no. And then I would get another opinion from another doctor just to be sure.

Michael: Correct. Yes.

Mike: Absolutely, yes. Okay. So we’re up to our final question, “Ask A Lawyer” with Michael Gopin.

Steve: I feel like this is a question that a lot of people have probably encountered, at least at some point during their lives. Whitney writes in, “My dog was attacked by another dog, and we had to take him to the vet. He needed stitches and part of his ear was gone. The owner said he would help with his expenses but now refuses since it happened in his front yard. Does that matter?”

Michael: No, the location does not matter. The front yard is certainly not a place that you, you know…aren’t protected from a dog who bites you. The question is, does this dog have a propensity to bite? So they have in Texas what they call a “one free bite rule” kinda. Well, if you don’t know your dog is a biter and they bite someone once, then you’re on notice that the dog is mean or a biter or something then you’re going to be liable for after that.

Mike: Good to know.

Michael: Also, you know, if it’s a breed that is, you know, potentially more dangerous, then that’s another question.

Mike: Like a Chihuahua? I don’t care what people say, they are meaner than German Shepherds.

Steve: And Pit bulls. Chihuahuas are the meanest.

Mike: Absolutely. I tell you what, and those other little ones that people put in their purses like Paris Hilton. Yorkshires, I think they’re called.

Michael: Yorkies.

Mike: Yorkies.

Michael: I have one.

Mike: Yeah. Those things are mean.

Steve: Is yours mean?

Michael: No. She is not a meanie. She thinks she’s the boss but…

Mike: Okay, so the one-bite rule…

Steve: I’ve never heard of the one-bite rule. Have you?

Mike: Neither have I, but it’s good to know.

Steve: Yes, it is. You get a mulligan.

Mike: Or the dog gets a mulligan.

Michael: I tell you. You have to know if the dog’s dangerous. And so once you are…

Mike: Yeah. What if there was a “Beware of Dog” sign posted somewhere?

Michael: This is the front yard first of all. So I mean, you have responsibility as a person, you know, not to trespass in their backyard or something. That would be a little different. But sounds like this dog was loose in the front yard and bit someone. So the question is, has this dog done it before? And you know, you do have a potential case against the dog owner, for sure.

Steve: But sometimes you’ll be in the front yard and there’ll be that little side gate going into the backyard that’ll say “Beware of Dog” that you can still see from the front yard when you’re passing a house. Does that matter?

Michael: No. It won’t matter. But you know, the owner says “Beware of Dog”, I guess they’ve already noticed that the dog is dangerous.

Mike: Okay, so the guy says, “Yeah, you know, I’ll help you with the expenses.” And then he’s like, “Yeah. No. I was doing the kinkies sign behind my back. I’m not gonna do it anymore.”

Michael: Oh, It’s gonna be a swearing match with that, but you’re still gonna get to the legal issue of if they’re responsible. You know, the guy who was bitten was saying, “Yes, they told me that they would help pay and we didn’t say anything, and we don’t have the money,” or whatever the story is. That doesn’t admit fault or liability, you know, they were trying to help and maybe they can’t anymore. So you have a potential case, we just have to know more facts.

Mike: And doesn’t this fall under a homeowner’s policy?

Michael: It does. Yes. So if you have homeowners, your dog’s bites will be protected.

Mike: Okay. After the one-bite freebie?

Michael: Correct. I mean, you’ll still have a defense also. I mean, if you get sued, and you’re the one who owns the dog, you need to get your homeowners involved, so they’ll defend you. So…

Mike: Okay.

Michael: …you’ll have a free lawyer and legal representation.

Mike: Cool.

Steve: I like it. Maybe one of your listeners will say, “Hey, I heard the one-bite rule on Mike and Trisha Mornings.

Mike: I learned a lot with this last one. And the first one too.

Steve: That’s right.

Mike: You know, about letting somebody move in.

Michael: [Inaudible 00:09:54.217].

Mike: All right, thank you so much.

Michael: You’re welcome. Have a good day guys.

Mike: Appreciate all the legal expertise. And if there’s something that you’d like us to put in front of him next month when he comes back, you can submit one via the app, you can do that right now. You can also go to kisselpaso.com top of the page Must Read bar, look for Ask Michael Gopin and you click on that.

Michael J. Gopin

Michael J. Gopin has practiced law in El Paso since 1987. Even after more than 30 years, he still remembers his first jury case. It was two weeks after receiving his license, when he represented a person whose life had been forever changed after being blinded in a work-related incident...