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Poremba v. Southern Nevada Paving – Reopening Workers’ Compensation Claims

In personal injury litigation, when a lawsuit is settled, that’s it. There is no going back to ask the same defendant for more money – even if your injuries are worse or lasted longer than you expected.gavel21

But it’s different with workers’ compensation claims, which can be re-opened when an employee disability has increased or recurred.

Often the first thing we need to explore is whether the case was settled via a stipulation and award or a compromise and release. If it was a stipulation and award, claims can often be reopened. However, with a compromise and release, employers are usually released from any future claims for the same incident. The only exception, usually, is if the settlement was somehow procured by fraud.

In the recent case of Poremba v. Southern Nevada Paving, the Nevada Supreme Court was asked to decide whether a claimant who used third-party claims to cover household expenses could re-open his workers’ compensation claim or if the way he used his money precluded that course of action.

The lower courts had decided plaintiff could not re-open his claim for worsening and ongoing injury, but the Nevada Supreme Court reversed.

According to court records, plaintiff was a construction driver for defendant and was injured when another driver (not a co-worker) struck his vehicle with a backhoe while plaintiff was on-the-job.

Plaintiff suffered serious injuries to his head, neck, back and knee.

He later settled his workers’ compensation agreement, with a stipulation that he could re-open it later if his injuries got worse.

Also around the same time, he was pursuing a personal injury lawsuit against the other driver. Ultimately, that case settled for about $64,000. A big chunk of that – more than half – went to paying off unpaid medical liens. Another $14,000 went to paying ongoing medical expenses. What was left over, plaintiff used to cover a few household expenses, such as covering the mortgage for a few months and buying food for his family.

When his condition didn’t improve, he sought to re-open his workers’ compensation claim. However, the employer denied this request on the grounds he had spent his third-party settlement funds on expenses that were not specifically for medical purposes, as would have been required had he obtained workers’ compensation benefits.

Workers’ compensation benefits specifically cover medical expenses and lost wages. Personal injury cases, meanwhile, allow for recover for damages such as pain and suffering and loss of consortium.

Workers’ compensation law in most states requires that if a plaintiff wants to re-open a workers’ compensation claim, they need to first exhaust all possible third-party claims. The case law in Nevada determined those third-party claims may be used for medical expenses.

However, the state supreme court concluded, that money doesn’t have to be spent on medical expenses. It’s only required that the person obtain third-party recovery – not that every cent of that recovery must go only to things that workers’ compensation would cover.

Therefore, claimant was given the green light to reopen his claim.

In addition to a disability that is recurring or increasing, other reasons for re-opening a workers’ compensation claim include:

  • New evidence showing the award was inadequate and reopening is the only way to resolve an unavoidable fact error;
  • An error in the law that created an inequitable result;
  • A clerical error.

Our Georgia workers’ compensation lawyers can help.

For information on Atlanta work injury compensation, contact J. Franklin Burns, P.C., at 1-404-303-7770.

Additional Resources:

Poremba v. Southern Nevada Paving, April 7, 2016, Connecticut Supreme Court

More Blog Entries:

Mayer v. TPC Holdings, Inc. – PPD Benefits Survive Worker Death, April 15, 2016, Georgia Workers’ Compensation Lawyer Blog