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Author: Jon Montagna

McDonald Decision

McDonald Decision

Tony McDonald v. CP&O, LLC.

BRB No.: 11-0735

(June 28, 2012)
Issue: Claimant appealed the Decision of the ALJ, who determined that Claimant did not establish that he suffered an independent leg injury on September 21, 2006. His entitlement to temporary partial disability benefits for the requested periods were denied because he failed to establish that he suffered an economic loss.
Finding: REMAND. Benefits Review Board agreed with Claimant that the ALJ did not fully consider the relevant evidence as to whether Claimant was disabled as of September 9, 2007, specifically, that he did not address testimonial evidence. Moreover, the BRB found that although the ALJ found that neither the opinion of Dr. Wardell or Dr. Rodrigue supports Claimant’s claim, the ALJ did not fully explain his inference that the disability back pain Claimant experienced in 2008 was due to something other than the work injury.
Conclusion: On remand, the ALJ must make explicit findings as to whether Claimant’s complaints of pain are credible and whether Claimant established that at any time after September 8, 2007 he could not perform his usual work due to his work injury.

Changes to LHWCA?

A Pennsylvania Superior Court Case was filed early this month that could change the way we interpret the law.

In the case of Betty Uveges VS. Samuel Uveges, an appeal was filed in January 2014, with the intention of attaching the husband’s disability benefits to the alimony payments made to the wife. Mr. Uveges is a recipient of payments due to disability covered under the Longshore & Harbor Workers Compensation Act (LHWCA).

The couple’s divorce was finalized on August 1, 2011 and on February 15, 2012 Ms. Uveges filed a petition to force her ex-husband to make the required alimony payments. A hearing was convened on April 10, 2012, during which Mr. Uveges was found in contempt, issued a bench warrant and provided for the attachment of the monthly benefits.

On May 4, 2012, the Consolidated Coal Company (Consol) at which Mr. Uveges was previously employed, filed a petition for special relief. Consol claimed that benefits given under LHWCA are exempt from attachment.

Many motions were filed and awards entered, and the case continued into 2013.

A hearing was scheduled for December 2, 2013, followed by a review of the briefs. On January 15, 2014, it was concluded that the law does permit an ex-spouse to attach the retirement or disability benefits of the other ex-spouse, who was found in contempt.

The ultimate outcomes of this 464267243trial are as follows:

  1. The Court finds that Mr. Uveges owes $56,912.80 for back Alimony payments
  2. The Court awards Ms. Uveges $15,000.00 in total attorney’s fees
  3. $2,000.00 per month shall be deducted from Mr. Uveges’ benefits and disability payments for ongoing alimony and attorney’s fees.
  4. $471.75 and $517.80 shall continuously redirect to (respectively) Mr. Uveges’ arrearages and Ms. Uveges’ attorney’s fees.

The argument continues to rage on between the former husband-and-wife, but the key points of this trail may be summed up in one succinct sentence:

“In sum, because Husband’s LHWCA benefits are paid to him pursuant to federal law, and because Wife is not a ‘creditor’ and Husband’s alimony obligation is not a ‘debt’… the LHWCA benefits may be attached.”

See Also:

Navigable Waters Blog

PA Court Trial Opinion

Did you know that cars have Black Boxes too?

Some drivers may want to maintain EDR privacyA recent decision made by the National Highway Traffic Safety Administration paves the way for a new era of vehicular safety. As of September 1, 2014, all new vehicles manufactured are required to be equipped with a black box, just like airplanes. Officially known as Event Data Recorders, these EDRs may soon change the way we drive.

According to the Insurance Institute for Highway Safety, EDRs have been prevalent in over 90% of cars since 2006. Naturally, the version from almost ten years ago was much more limited than those being implemented today.  Today’s clever little devices can record a wealth of information, including:

  • Throttle position
  • Brake history
  • Vehicular speed
  • Air bag deployment
  • Seat belt status

This information is becoming increasingly valuable, as it could easily prove guilt or negligence by the driver, or even assist an insurance company when determining who was at fault. That’s why the information stored on the EDR is legally the property of the driver. Police, insurance companies and mechanics may only access the information stored on the EDR with the consent of the driver/owner of the vehicle. While that may sound like great news, there are often loopholes and fine print on insurance agreements, which may grant them access to the EDR after an accident.

Clauses such as these are why it is always a great idea to have a lawyer on your side. Contact the law offices of Montagna Klein Camden if you have been in an accident and want to maintain ownership of your EDR and privacy, or if you are preparing to sign a contract with an insurance company. Let us help you with the legalese, so that you can continue living your life. Contact us today for a free consultation.

We Fight For You

After an injury, when you’re at your most vulnerable, you’re likely to be bombarded by phone calls from insurance companies, the defendant’s legal team and legal officials. Insurance companies know that in your injured, medicated and confused state, you run the the risk of saying something that may hurt or even destroy your chances of winning your case. If you are already injured, it’s critical that you work with a team who will protect you and your interests as soon as possible, to control the flow of information and secure the evidence. The team at Montagna Law has been battling Employer’s lawyers, big trucking firms and major shipping entities for decades – we know what it takes to secure a settlement that will keep you and your family stable.

Contact us, today.



Don’t Wait to File Your Claim

If you’ve been injured on the job, don’t wait to contact a lawyer. Many cases have a statute of limitations, which means that if you don’t file a case within a certain window of time, it may be too late for you to receive compensation for your injuries.

Some types of cases with strict time restraints include:

Longshore Harbor Workers Compensation Act

Worker’s Compensation

Jones Act

Defense Base Act

Hearing Loss

Don’t delay. Act now and contact our lawyers for a free consultation today.

Separate Property, Marital Property, and Hybrid Property.

A Virginia Beach Divorce Lawyer discusses separate property, marital property, and hybrid property:

Section 20-107.3 of the Code of Virginia, 1950, as amended defines “separate property,” “marital property” and “part marital and part separate property. As the Code notes, “separate property” is defined as (i) all property, real and personal, acquired by either party before the marriage; (ii) all property acquired during the marriage by bequest, devise descent, survivorship or gift from a source other than the other party; (iii) all property acquired during the marriage in exchange for or from the proceeds of sale of separate property, provided that such property acquired during the marriage is maintained as separate property; and (iv) any part of marital property which may be declared separate property pursuant to court order. Furthermore, income received from separate property during the marriage is separate property if not attributable to the personal effort of either party and the increase in value of separate property during the marriage is separate property, unless marital property or the personal efforts of either party have contributed to such increase and then only to the extent of the increases in value attributed to such contributions. Additionally, the personal efforts of either party must be significant and result in substantial appreciation of the separate property if any increase in value attributed thereto is to be considered marital property.

“Marital property” is defined as (i) all property titled in the names of both parties, whether as joint tenants, tenants by the entirety or otherwise; (ii) that part of any property classified as marital pursuant to court order or (iii) all other property acquired by each party during the marriage which is not separate property as set forth above.

Hybrid property is property that is part separate and part marital. The hybrid property can evolve from separate property due to the personal efforts of the parties.

Gifts, Bequests, and Inheritances: What Are They?

Generally, Virginia’s equitable distribution statute, Section 20-107.3, includes as separate property all property acquired during the marriage by gift, bequest, descent, survivorship or gift from a person other than the spouse.

Additionally, the date the gift or inheritance is actually received is the date to be used for the classification of the property.

However, it is important to note that separate property from a gift or inheritance may change or evolve from separate property to marital property by the use and maintenance of the property.

Obstructed View Caused By Your Air Freshener

Can an auto air freshener block a driver’s view to justify a brief detention?  Yes.

In a recent unpublished decision by the Virginia Court of Appeals, the Court ruled that a police officer had a reasonable suspicion that the driver may be in violation of Section 46.2-1054 of the Code of Virginia, 1950, as amended. That statute essentially says that a driver may not have an obstructed view when driving his or her vehicle. This minor offense can sometimes lead to much bigger problems, as one Virginia driver discovered.

In a recent case the police officer stopped the driver, smelled marijuana, and then recovered cocaine that fell from the driver’s pant leg during a search of the defendant.

In light of this recent case, drivers should be cautioned to refrain from using any objects that may obstruct their view.

If you are arrested following a stop based on an air freshener hanging from a rear view mirror, you should immediately contact the Norfolk traffic lawyers at Montagna Klein Camden L.L.P.  Our Norfolk and Virginia Beach criminal defense lawyers have extensive experience defending your rights.

How Long After a Divorce Decree Can a Court Enter a QDRO?

After a divorce decree has been entered, can a Norfolk Circuit Court enter a Qualified Domestic Relations Order (QDRO) to create a procedural change effectuating the terms of the final divorce decree? 

Yes.  Courts always have the authority to interpret their own orders, even 21 days after entry of a divorce decree.  As long as the Norfolk Circuit Court Judge does not alter the terms of the initial decree substantively, the Judge can enter a QDRO to make it conform to the intentions of the party.

Steps A Divorce Lawyer Must Take In The Divorce Process

A Norfolk divorce lawyer begins a divorce action by filing a Complaint for divorce in the Circuit Court. At least one party must be a bona fide resident and domiciliary of Virginia for six months preceding the commencement of the suit.

The venue or location of the Circuit Court for the divorce action is generally based upon preferred or permissible jurisdiction.

Permissible jurisdiction is in any Circuit Court in the Commonwealth of Virginia.

Preferred jurisdiction is where the parties last cohabited as husband and wife; at the option of the plaintiff, where the spouse resides; or if the spouse’s whereabouts are unknown or if the spouse resides out of state, where the plaintiff resides.

The defendant will generally file an Answer and/or Counterclaim.

In the Answer, the defendant will admit or deny the allegations in the plaintiff’s Answer.

 In the Counterclaim, the defendant may allege his or her facts for a divorce action.  If a Counterclaim is filed, the plaintiff will file an Answer to the Counterclaim, where he or she admits or denies the allegations in the Counterclaim.

To have jurisdiction over the defendant in a bilateral divorce and the ability to resolve certain issues ancillary to the divorce (e.g. support or equitable distribution), the court must determine if personal jurisdiction over the defendant exists.  To obtain personal jurisdiction over the defendant, both the plaintiff and the defendant must have a physical presence before the forum court; the defendant must make a general appearance before the court through counsel; or have personal jurisdiction over the defendant by Virginia’s long arm statute.

The Virginia long arm statute is § 8.01-328.1 of the Code of Virginia, 1950, as amended.  The statute delineates when personal jurisdiction over a person may be exercised:

A.  A court may exercise personal jurisdiction over a person, who acts directly or by an agent, as to a cause of action arising from the person’s:

1.  Transacting any business in this Commonwealth;

2.  Contracting to supply services or things in this Commonwealth;

3.  Causing tortious (wrongful) injury by an act or omission in this Commonwealth;

4.  Causing tortious injury in this Commonwealth by an act or omission outside this Commonwealth if he regularly does or solicits business, or engages in any other persistent course of conduct, or derives substantial revenue from goods used or consumed or services rendered, in this Commonwealth;

5.  Causing injury in this Commonwealth to any person by breach of warranty expressly or impliedly made in the sale of goods outside this Commonwealth when he might reasonably have expected such person to use, consume, or be affected by the goods in this Commonwealth, provided that he also regularly does or solicits business, or engages in any other persistent course of conduct, or derives substantial revenue from goods used or consumed or services rendered in this Commonwealth;

6.  Having an interest in, using, or possessing real property in this Commonwealth;

7.  Contracting to insure any person, property, or risk located within this Commonwealth at the time of contracting;

8.  Having (i) executed an agreement in this Commonwealth which obligates the person to pay spousal support or child support to a domiciliary of this Commonwealth, or to a person who has satisfied the residency requirements in suits for annulments or divorce for members of the armed forces or foreign service officers of the United States pursuant to § 20-97 provided proof of service of process on a nonresident party is made by a law-enforcement officer or other person authorized to serve process in the jurisdiction where the nonresident party is located, (ii) been ordered to pay spousal support or child support pursuant to an order entered by any court of competent jurisdiction in this Commonwealth having in personal jurisdiction over such person, or (iii) shown by personal conduct in this Commonwealth, as alleged by affidavit, that the person conceived or fathered a child in this Commonwealth;

9.  Having maintained within this Commonwealth a matrimonial domicile at the time of separation of the parties upon which grounds for divorce or separate maintenance is based, or at the time a cause of action arose for divorce or separate maintenance or at the time of commencement of such suit, if the other party to the matrimonial relationship resides herein; or

10.  Having incurred a liability for taxes, fines, penalties, interest, or other charges to any political subdivision of the Commonwealth.

Jurisdiction in subdivision 9 is valid only upon proof of service of process pursuant to § 8.01-296 on the nonresident party by a person authorized under the provisions of § 8.01-320. Jurisdiction under subdivision 8 (iii) of this subsection is valid only upon proof of personal service on a nonresident pursuant to § 8.01-320.

B.  Using a computer or computer network located in the Commonwealth shall constitute an act in the Commonwealth. For purposes of this subsection, “use” and “computer network” shall have the same meanings as those contained in § 18.2-152.2.

C.  When jurisdiction over a person is based solely upon this section, only a cause of action arising from acts enumerated in this section may be asserted against him; however, nothing contained in this chapter shall limit, restrict or otherwise affect the jurisdiction of any court of this Commonwealth over foreign corporations which are subject to service of process pursuant to the provisions of any other statute.

After the divorce action is filed, counsel for the parties will generally engage in discovery.  Discovery might include propounding interrogatories, questions to be answered under oath; request for admissions; and depositions.

After the discovery is completed, counsel will generally set the matter for a hearing.  However, counsel will want to insure that the statutory time period has been satisfied for a divorce a vinculo matrimonii, or final divorce. If only a divorce from bed and board is obtained, the parties shall remain separated and have their persons and property protected.  But, neither party may remarry under a divorce from bed and board.

At the conclusion of the divorce hearing and if proper, the court will enter a decree of divorce.  The decree of divorce a vinculo matrimonii terminates the marriage and either party will be free to remarry.  However, counsel should advise their clients not to remarry until after 30 days have lapsed and no appeal or other pleading is filed.

Whether you are in Newport News, Virginia Beach, Norfolk or any other city in the Hampton Roads region, call the divorce lawyers of  Montagna Klein Camden to discuss your case. We can help you during this is a confusing and difficult time.

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