June 30, 2015

Warren Props. v. Stewart - Successive Work Injuries

Workers who suffer successive work injuries also tend to have a tougher time securing benefits, particularly if the injuries occurred under the watch of different employers. medicaldoctor.jpg

In these cases, benefits must be apportioned based on what percentage of worker's ailments were caused by which injury. This can result in a complicated process that will involve extensive review of medical records, numerous independent exams and testimony from expert witnesses.

The case of Warren Props. v. Stewart is illustrative, having ping-ponged through various courts trying to sort out the appropriate course of action for successive injuries at separate employers. Most recently, the case was before the Iowa Supreme Court. That court held an employer who is liable to compensate a worker for a work-related injury does not have to pay for pre-existing disability that arose from employment with a different firm, or from causes unrelated to employment when the worker's earning capacity wasn't re-evaluated in the competitive job market prior to the successive injury and after.

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June 20, 2015

Report: Young, Immigrant Construction Workers at Small Firms at High Injury Risk

Workplace injury can happen almost anywhere. From fast food restaurants to corporate headquarters, the potential is always there. However, certain industries and jobs pose a greater vulnerability to work-related injury.
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The American Society of Safety Engineers and the National Institute for Occupational Safety & Health recently released a report identifying a group of workers with multiple, overlapping vulnerabilities. These are employees who:


  • Work in construction

  • Are young

  • Are immigrants

  • Are Hispanic (minority)

  • Work for smaller companies


Each of these characteristics poses a higher risk of injury. However, workers who possess these traits are more likely to get hurt or sickened and more likely to have poor health outcomes as a result.

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June 15, 2015

Gill v. Brescome Barton, Inc. - Work-Related Knee Injuries

It's not uncommon for employers to switch workers' compensation insurance carriers periodically. However, this action caused a headache for the courts when it came to a worker who suffered two compensable work-related injuries while working for the same employer, but covered by two different insurance carriers.
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The case, Gill v. Brescome Barton, Inc., wound its way recently all the way to the Connecticut Supreme Court.

According to court records, worker suffered a compensable, work-related injury to his left knee back in 1997. At the time of that injury, his employer was insured for workers' compensation benefits by Company 1.

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June 6, 2015

Devine v. Great Divide Insurance Company - Violence at Work

The U.S. Department of Labor reports nearly 2 million people are victims of workplace violence annually. Workplace violence is defined as any act or threat of physical violence, harassment, intimidation or other threatening, disruptive behavior that occurs on-the-job.
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Most of the time, workers injured in these cases are eligible to collect workers' compensation or, if the attack proves fatal, their families can collect workers' compensation death benefits. However, it's not enough that the attack occurs on-site. It must somehow be job-related.

In some cases, depending on the circumstances, there may also be justification for a personal injury lawsuit. Generally, workers are barred from bringing such action against an employer - even if employer negligence was a factor.

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May 30, 2015

Dukane Precast, Inc. v. Perez - $70,000 OSHA Fine Affirmed

The Occupational Safety & Health Administration, the federal government agency that sets safety standards and regulations for U.S. employers and workers, is clear there must be protocol in place to protect workers in permit-required confined spaces.
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Per 29 C.F.R. ยง1910.146(d)(9), this includes the requirement to have a plan in place to summon rescue and emergency services in case someone is trapped in one of these situations. Employers also owe a duty to prevent unauthorized personnel from attempting a rescue.

There are also requirements to have signs posted at the entrance of these spaces, indicating the danger and warning not to enter. There also has to be railing or barriers around these locations.

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May 22, 2015

Arrant v. Graphic Packaging International, Inc. - On-the-Job Hearing Loss

Work-related hearing loss is one of the most common occupational injuries in the U.S. The Centers for Disease Control & Prevention report an estimated 22 million workers are routinely exposed to hazardous noise levels on-the-job, and an additional 9 million are exposed to chemicals that might negatively impact hearing.
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On average, more than $240 million is spent each year on workers' compensation claims stemming from loss of hearing.

The question recently before the Louisiana Supreme Court in Arrant v. Graphic Packaging International, Inc. was whether gradual hearing loss sustained at work is an occupational disease or a personal injury tort.

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May 15, 2015

Workers' Compensation Claim From Hospital on Hold by Court

Usually, it is the workers who seek workers' compensation benefits from the employer. However, due to the exclusive remedy provision of workers' compensation statutes, sometimes it's the company that seeks to prove a work injury claim is subject to remedy per workers' compensation statutes, rather than through civil courts.
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Exclusive remedy is a trade-off. The worker is supposed to receive fast, accessible benefits to cover medical expenses and a portion of lost wages for on-the-job injuries and illnesses without having to prove employer negligence. In turn, workers forfeit their right to sue the employer for what would likely be a higher payout. The company is thus immune to most litigation in this regard. However, other responsible third parties may still be held accountable without breaching this immunity.

Usually, this arrangement is beneficial to both parties. However, there are some employment hierarchies in which the labels "employee" and "employer" may come into question. Workers' compensation exclusive remedy and immunity isn't applicable where the claimant wasn't an "employee" and the defendant not an "employer." That leaves the worker free to sue for damages, although he or she will have to prove negligence.

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May 8, 2015

Sheena H. v. W. Va. Office of Ins. Comm'r - Statute of Limitations on Workers' Comp Claims

As with any civil proceeding, workers' compensation claims are subject to a specified statute of limitations, which is determined by the state.
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A statute of limitations is a time period during which claims must be filed to be considered valid. The idea is courts want to limit the possibility of becoming backlogged with years-old cases for which evidence may have eroded or be non-existent. So for example in Georgia, the general rule is claims for workers' compensation benefits have to be filed within one year of the accident date, or else the right to compensation is barred. This is different from the time limit for other types of personal injury claims, which is two years. That's why injured workers must act quickly to secure benefits.

However, the statute of limitations can be "tolled" or postponed in certain cases. Those include situations in which income or medical benefits have been paid voluntarily by an employer to or on behalf of the injured worker. Claims involving a death have to be filed within one year of the date of death. There are also exceptions made when workers were not aware injuries were work-related.

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April 30, 2015

Vandre v. State ex rel. Dep't of Workforce Servs. - Compensation for Existing COPD

While workers who have been injured on-the-job need not prove their employers were negligent, they do need to show their injuries arose out of and in the course of their employment. lungs2.jpg

In some instances, this is straightforward. A carpenter who falls from a ladder on a job site and twists his ankle should receive compensation. Where matters can get complex is when there is dispute about whether injuries or illnesses were in fact caused by work, or if not, whether they were exacerbated to any great degree by a work accident.

A perfect case-in-point on this is Vandre v. State ex rel. Dep't of Workforce Servs., a matter that was recently weighed by the Wyoming Supreme Court.

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April 20, 2015

Georgia Bill Would Cut Time Workers Have to Sue for Work Injury

Lawmakers from two separate Georgia state committees recently met to discuss a proposal that would slash the amount of time injured workers have to pursue a claim with the state board of workers' compensation.
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Currently, workers have up to five years to file a work injury claim with the State Board of Workers' Compensation. House Bill 536 would significantly cut that by more than half, down to 2 years.

The intent, say Republican backers, is to shorten the amount of time an employee can leave an employer and then file a workers' compensation claim. Proponents of the measure say companies are burdening unfairly because insurance premiums are set higher in this state to cover for the extended risk of a claim. They argue that's money that could be going to hire more workers or give additional raises.

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April 12, 2015

Appeal of Brandon Kelly - Truck Accident Was Work-Related, Compensable, Court Rules

Justices of the New Hampshire Supreme Court recently ruled the state workers' compensation appeals board erred when it found not compensable the work injuries of a man who suffered severe injury during a truck accident that occurred while he was driving from a job site to the main shop.
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Specifically, the board in Appeal of Brandon Kelly ruled the worker, who fell asleep at the wheel of that truck, had to show his weariness was work-induced. The worker, who suffered a leg amputation as a result of the crash, had allegedly failed to prove this, the board found.

But the state supreme court ruled this was not a prerequisite to receiving workers' compensation, and there was no question the injury arose out of and in the course of worker's employment. Thus, his employment was a substantial contributing factor in the injury, and he deserved to be compensated.

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April 6, 2015

Hildebrant v. State ex rel., Dept. of Workforce Servs. - Ladder Fall Compensation for Surgery Denied

Falls are one of the top causes of injury in the workplace. The Centers for Disease Control and Prevention reports 43 percent of falls over the last decade have involved a ladder. Among construction workers in particular, ladders are involved in 80 percent of all falls that land them in the emergency room.
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Workers who suffer injury as a result of a ladder fall should pursue workers' compensation to cover the cost of medical expenses, as well as lost wages for the amount of time they are unable to work.

This was the case in Hildebrant v. State ex rel., Dep't of Workforce Servs., where an HVAC technician suffered a bad fall while working on a college campus construction project. The worker fell about 20 feet off the ladder, and was taken to a local hospital by ambulance. He complained of pain in his lower back, right shoulder and right leg.

After receiving emergency care, he was discharged but received ongoing care from a physician. The doctor indicated that a small compression fracture in the man's back appeared to be chronic, but he couldn't rule out the possibility that it was caused by the fall. He also had some bone bruising, torn tendons and other issues, but no acute traumatic changes to the lumbar spine. Although he noted patient had ongoing pain, he did not see anything that warranted surgical intervention.

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March 30, 2015

Hoyle v. DTJ Enters., Inc. - Intentional Torts and Employers

The intent of workers' compensation law is to ensure costs resulting from industrial accidents and conditions are borne largely by industry. By ensuring workers receive definite and speedy payments for medical expenses and lost wages incurred for on-the-job injuries and illnesses, they forfeit the right to pursue further litigation.
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This is true across the country, and it's referred to as "exclusive remedy." It means workers' compensation is the exclusive remedy through which workers can be compensated for occupational ailments or injuries. Companies are otherwise immune from civil litigation on these matters.

But, as with all areas of law, there are exceptions. There is the third-party litigation that can be brought against parties who are not considered employers. Beyond that, there is the realm of "intentional tort" by employers.

This has been very narrowly interpreted by most courts. In some states, it's all but impossible to bring such a claim. The definition generally holds anything less than outright, specific intention on the employer's part is insufficient to permit exception to the exclusivity rule. This typically is not going to extend to situations in which employer acts with indifference or even creates an exceptionally or unlawfully hazardous work environment. It instead means the actual intent to cause harm to the worker.

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March 20, 2015

Reports: Workers' Compensation Protections on Chopping Block

Two reports. One by NPR and ProPublica. The other by the Occupational Safety and Health Administration. Released at the same time. Both on the issue of cuts to workers' compensation nationwide. worker2.jpg

Same conclusions: Workers are quickly losing the aspects that made the bargain of workers' compensation worthwhile to employees. Due to legislative action in the last decade, benefits are not easily obtained and the monthly payouts are often far less than they should be. When the exclusive remedy of workers' compensation was established, workers traded the right to sue employers for negligence related to on-the-job injuries in exchange for assurance that their company would subsidize their basic needs while they recovered.

There is now a wide-ranging disparity of these benefits among states, and if action isn't taken soon, we will see this trend continue.

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March 10, 2015

Nealy v. Santa Monica - Workers' Comp Request Granted While Discrimination Claim Denied

In Georgia, companies cannot legally terminate an injured worker as retaliation for filing a workers' compensation claim.
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However, there is no law preventing an employer from terminating an injured worker who is receiving workers' compensation - so long as that worker isn't being punished for filing the claim. Unfortunately, it's not unheard of for employers to invent reasons for firing unrelated to injury. Because Georgia recognizes employment at-will, this means without a written employment contract, a company can fire a worker at any time for most any reason.

This puts injured Georgia workers in a tough spot, and may actually discourage some from reporting their work-related injury in the first place.

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