Archive: March, 2011

Universal Healthcare Could Be Demise of Workers’ Compensation

March 31st, 2011 · · Uncategorized No comments - Tags: , , , , , ,
Dan Smith

Daniel E. Smith, Workers Compensation Attorney

Barack Obama ran his presidential election on the promise of healthcare reform. It is estimated that upwards of 50 millions Americans are uninsured in the United States. That is a staggering number when you think of the population of the United States, which currently sits just above 300 million people. Add that figure to the number of jobs that have been lost (and the insurance that comes with a job) then the amount of Americans uninsured is frightening.

People from both sides of legislation fought and are still fighting to amend Obama’s recent healthcare plan, but that is not the only healthcare issue that has been circulating on Capitol Hill. People might remember that Hilary Clinton promised, if elected, that she would set up a universal healthcare system for all Americans. Just because she didn’t get elected doesn’t mean that the issue was dropped.

Even though a universal healthcare plan is not in the very near future, it’s still not too early to talk about the effects that a universal healthcare plan could have on workers’ compensation. Most people are insured through their employer and are covered under workers’ compensation should they get injured at their place of work. The employer, through the insurance carrier, should provide benefits that include, but are not limited to, hospitalization, physical therapy, medical tests, doctor’s visits, and medication. If a universal healthcare plan were implemented then how would the new system go about figuring out what coverages are provided?

Currently, workers compensation is a state run program. Considering that workers’ compensation only accounts for about 2-3% of the health care system makes overhauling it on a national level a daunting task. Adopting national laws for workers’ compensation could also interfere with state laws that are already in place. If not kept at a state level then workers compensation benefits could decrease. At worst, we could see the end of workers’ compensation as it would seem redundant to offer workers’ compensation if all Americans are provided insurance regardless if they have a job or not.

Employees are also offered indemnity benefits under workers’ compensation, which helps provide an income for injured employees while they are recovering and unable to work. Under a universal healthcare plan, an employee’s medical costs would be covered, but an employee might not be able to collect indemnity payments to support him or herself.

The bottom line is that workers compensation is too fragile and small of an area of the healthcare system to be amended and overhauled by a universal healthcare plan.

Intellectual Property Rights in the Facebook Afterlife

March 18th, 2011 · · facebook, intellectual property, privacy rights One comment - Tags: , , , ,
Dan Smith

Daniel E. Smith, Attorney

It seems that these days everyone is on Facebook. We use it to keep in touch with other people and share information, no matter how mundane or personal it may be. As my colleague Nanette Cruz notes in her recent blog post, Facebook users are beginning to feel the legal impact of status updates or photos. But do they fully understand how much of their profile is properly “theirs”? Once they post information or photographs on Facebook, who owns it? And more importantly, when a user dies, does their online profile die as well?

According to the Facebook Terms of Service, users can manipulate how their content is shared. But once you click “share”, you grant Facebook the “non-exclusive, transferable,…royalty-free, worldwide license” to use your intellectual property, which includes photos and videos. Intellectual property, in short, is an intangible, unique thing you own. Usually, as the word “intellectual” implies, these products are from your mind, such as a song, a poem, or a photograph. Many Facebook users just post photos of events or their friends and family. But others may use Facebook as a means to promote their artwork or music, and this is when ownership rights need to be clarified. Facebook’s Terms state that they can’t make money from the property and their property rights end once the user takes the content down, but that doesn’t mean Facebook can’t share your active content without getting your permission first.

Social media sites rely on a user’s individual thoughts, so could profiles in general be considered as intellectual property? I don’t think it is unreasonable to say so. If users are given legal control of their profiles and content, do they also have the right to say what happens to it after they pass away? What about the active content on the profile? Thinking about what to do with your belongings after you die can be a depressing subject. For that reason, some people avoid the subject until it’s too late. But even the most proactive people who write a will early on in life may not think about what happens to their online accounts after death.

Facebook has thought of a solution for this also. The family and friends of a deceased user have two options: they can memorialize the account or request that it be deactivated. Unfortunately, algorithms don’t take into account the emotional trauma that a survivor experiences when they see a box in their mini-feed reminding them to “reconnect with” someone who has passed away. The best way to avoid these technological oversights is to notify Facebook.

Family and friends can not, however, get the user’s login information. Even leaving specific instructions to do so in your will may be a grey area at this point. Because this issue is emerging the legal world, Facebook may be reluctant to give up a user’s information without very clear language. If the deceased person used Facebook to promote themselves as an artist or musician, then their property rights could be compromised by this barrier. Although Facebook strives to protect each user’s privacy, it can create a problem when a user’s loved ones want to protect property rights after their death. Family and friends wouldn’t be able to log in and save the content if the user had not made their wishes explicitly known in a will.

The law can’t always keep up as technology and cultures change. Laws may overlap and contradict with each other. In Facebook’s case, these laws include a user’s right to privacy and to own their intellectual property. Until more specific rules are developed, individuals can protect their rights and interests the old fashioned way: by planning an estate and having their wishes written in an official document. Other attempts at resolving this situation could lead to painful reminders that your loved one–and their creative legacy–has been lost.

Super Bowl XLV Photos

March 11th, 2011 · · football No comments - Tags: , ,

My family and I made the trip to SuperBowl XLV in Texas to watch the Packers win over the Steelers. Check out my photos:

Me & dad at Super Bowl

Me & my dad, Dan Smith Sr., in the crowd

My dad and me at the Super Bowl

Me and Dad in Packers garb

Smith family at the Super Bowl

The Smith family goes to Texas!

Me & Jacki

Jacki and I don't agree on everything...

Hawk Hat

Hawk Hat

NFL Contract Disputes Channel Consumer Concerns

March 8th, 2011 · · contract, current events, football, good faith, insurance No comments - Tags: , , , , ,
Dan Smith

Daniel E. Smith, Workers Compensation Attorney

Even if you don’t follow professional football, or any sport at all, you may have heard about the NFL’s recent legal troubles. The NFL’s owners and players have a bargaining agreement in place in order to help protect each other’s interests in the business end of this multibillion dollar industry. But recently, one party wasn’t respecting the other’s interests. I’ll admit that when the story first came out, I was quick to follow what the news media was saying about the disagreement. But then I looked at it from a legal perspective and found that the root issue is one I encounter often in the course of an injury claim.

The NFL’s most recent legal trouble stems from the owners renegotiating their contracts with major television broadcasters, such as DirecTV, CBS, Fox, and NBC. The owners wanted to renegotiate these contracts in order to ensure that the networks paid for the games even if they didn’t air. This was a very real possibility because the owners and the players union was not close to reaching a new collective bargaining agreement as the deadline got closer. If they reached the deadline without agreeing to new terms, then there would be a “lockout” and no games would be played and, therefore, no games would be broadcast. Without the new contracts, the owners wouldn’t get paid.

Because the collective bargaining agreement stems from the fiduciary relationship between the owners and the players, it didn’t seem fair that the owners renegotiated their contracts to protect their own salaries with no regard for those of the players. So, the players claimed that the owners had violated the standard of good faith and fair dealing that the contract and collective bargaining agreement implies. The players assumed that since they worked with the owners to negotiate that they would have the same agreement when it came to all aspects of the game.

Sports media skipped all of this legal detail and chose to focus on the fact that the court ordered the owners to pay the players union $6,000,000. An ordinary person hearing about this transaction might assume that the issue didn’t have to do with what was right, but what was lucrative. When we hear about the player’s salaries, the owner’s net value, and how much a team is worth, a person can easily assume that these arguments have to do with amassing the most money. At 200 billion dollars, the NFL is a very profitable industry.

The number of star players in the NFL isn’t that large when you compare it to the number of average players. Each team has 53 players and there are 32 teams, making the grand total of NFL players 1,696. Sure, some of those are household names and may be able to make money off of that fame for the rest of their lives, but the majority won’t. Instead, they’ll have 3 or 4 good seasons, but leave the league because they cannot endure the physical toll of football any longer. They may have sustained serious injuries that require lifelong treatment. A six or seven figure salary for three or four years isn’t very appealing if it’s meant to last over the course of a lifetime.

Contract law has a lot to do with laws that explicitly state that people or organizations should treat each other with respectful consideration. That’s why the players union took the owners to court over the broadcast contracts. They used legal tools, such as mediation, attorneys, and litigation, to protect their rights.

When it comes down to it, this process isn’t much different than an insurance company’s need to balance their business pursuits with the fact that their business rests on protecting consumers. They have a responsibility to provide benefits for customers who are covered under a policy, but they may resist paying claims in order to protect profits. They need to argue on behalf of both from time to time. The NFL owners also need to make strategic moves that keep the players on the field and playing for the American audience that funds the beloved industry.

The NFL’s collective bargaining agreement has brought the concept of good faith and fair dealing in contracts to the masses, but they may have to do some more research to find that out.