Injured Workers Are Stuck with Their Attorneys’ Negligence

By Jason Weinstock on March 16, 2009

My office receives at least one phone call a week from an injured worker who is unhappy with how their attorney handled their contested case at a hearing.  Unfortunately, it is usually too late for me to help those callers.  A recent decision from the Nevada Supreme Court illustrates one reason why it is too late for me to help.

Kathy Garcia, an employee of Scolari’s Food & Drug in northern Nevada, filed an occupational disease claim, asking for medical care for pain in her arms and shoulder that she thought was aggravated by her work duties.  Her claim was denied.  Garcia’s lawyer decided not to use medical reports at the appeals hearing that might have helped Garcia win her appeal, and Garcia lost her case.  Garcia then asked a  district court to send her case back for another appeals hearing so that she could use the medical reports while acting as her own attorney.

The Nevada Supreme Court decided against Garcia, with a majority of the justices ruling that any negligence of Garcia’s attorney in not putting the reports into evidence did not amount to a “good reason” to remand the case for another hearing.  Two dissenting justices disagreed and wrote that an injured worker should get their day in court with all relevant evidence if they can show that their attorney was negligent.  Garcia v. Scolari’s Food & Drug, 125 Nev. Adv. Op. 6 (1/29/09).  The moral of this story is that an injured worker needs to be careful when  selecting an attorney.

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