October 28, 2014

Ebola and Dangerous Health Care Working Conditions


With two nurses from Dallas, another doctor from New York, and now with another nurse being quarantined after providing services to Ebola patients in West Africa, working conditions for health care workers are under scrutiny. The life-threatening threat has spiked concern among residents, politicians, and members of the health care working community--both in training and establishing protocol and how workers should be treated to prevent future spread.

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After the death of a Liberian who was infected with Ebola, a nurse responsible for treating him became the first person to contract Ebola in the United States. Local, state, and federal officials scrambled to determine how she had contracted the disease, despite wearing protective gear. Officials were also concerned about how to prevent future cases, and to minimize the risk of treating patients.

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October 26, 2014

Can Injured Workers Recover Damages for Pain and Suffering?


In the event of a workplace accident, victims do not have to prove that the company or another employee was at fault. Even if the injured worker was ultimately responsible for the accident, he or she is still entitled to workers' compensation. The only requirement to qualify for workers' compensation is that the injury occurred "while in the course of performing work-related duties." In personal injury law, victims are entitled to compensation for personal and financial damages, including pain and suffering. One of the trade-offs in workers' compensation law, is that victims are not entitled to direct payments for pain and suffering.

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While you have likely heard about plaintiffs taking defendants to court in personal injury litigation, workers' compensation claims do not usually involve a dispute of facts. In most cases, a worker will file a claim after injury, and collect compensation for medical expenses and lost wages. Though injured workers are not able to collect for pain and suffering, they do benefit from the quicker turnaround of the workers' compensation system.

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October 23, 2014

Gits Mfg. Co. v. Frank - Disability Under Odd-Lot Doctrine


While most workers' compensation claims are going to hinge heavily on the degree to which a person is injured, there is another consideration: employment potential.
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This is where the "odd-lot" doctrine comes into play. This is a legal consideration that provides that while a worker may not be completely unable to work, his condition is such that he won't be regularly employed in any reasonably stable area of the labor market that would fit his services.

In these situations, it is the worker who shoulders the burden of proving there is a lack of opportunity for someone suffering from his particular condition, taking into account his education, experience and age. Usually, this is achieved by showing a worker diligently yet unsuccessfully sought work, but the only positions available were menial tasks for which there isn't a stable job market.

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October 20, 2014

Bass v. Harnett County - Failure to Immediately Report Work Injury Can Damage Case


Back injuries are among the most common type of work-related physical injury employees sustain. It's also one of the toughest to prove work-related causation, especially where previous issues existed.
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That's why immediate medical attention of a back injury - no matter how seemingly minor - is always advised by workers' compensation lawyers. Receiving an assessment right away can help rule out later assertions that the injuries in question are related to pre-existing conditions, and therefore not compensable.

In order to be payable under state workers' compensation laws, most claims have to begin with an "injury by accident." Back injuries are one of the exceptions, with N.C.G.S. 97-2(6) allowing some injuries don't necessarily rise out of an "accident," but rather a "specific traumatic incident of the work assigned."

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October 17, 2014

Humphrey v. Lowe's - Voluntary Exit in Workers' Compensation Claim


Temporary total disability benefits (TTD) are benefits available to a worker while he or she is unable to perform key job duties because of a job-related injury. These benefits may be available even to former employees under workers' compensation, but there are exceptions. forklift1.jpg

For example, if a worker removes himself from the workforce voluntarily and for reasons not related to his injury, he may not be able to collect TTD. He may still be entitled to coverage of certain medical costs directly stemming from the injury, but TTD could be denied.

This was the case recently in Humphrey v. Lowe's Home Improvement Warehouse, Inc., though details of employee's departure are sharply disputed.

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October 14, 2014

Barzey v. City of Cuthbert: On Workers' Compensation Death Benefits and Other Heirs


In workers' compensation claims that involve an employee who died as a result of a workplace accident, benefits can be paid as either a lump sum death benefit or in monthly installments for a certain period of time. One question that may arise is who is considered a beneficiary of a deceased employee for the purposes of a workers' compensation death benefit award.

tyne-cot-cemetery-892543-m.jpgBarzey v. City of Cuthbert, a case from the Supreme Court of Georgia, dealt with this issue. In Brazey, the mother of a deceased worker challenged the constitutionality of barring her from collecting the workers' compensation death benefits award for her son.

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October 9, 2014

Whigham v. Jackson Dawson Communications: Defining a Workplace Injury in South Carolina


Sometimes employers require employees to go to various teambuilding activities and company retreats. A question arises as to whether an injury during one of these company events is considered as on-the-job for the purposes of workers' compensation.

kickball-606231-m.jpgIn Whigham v. Jackson Dawson Communications, the Supreme Court of South Carolina addressed the issue of whether an employee injured at a company kickball game was eligible to receive workers' compensation benefits.

According to court records, petitioner was employed as the Director of Creative Solutions at a marketing and PR company. He was required to attend meetings twice a month, where the importance of team building activities was frequently discussed. Petitioner came up with the idea of a company kickball game, and his employer gave him a budget to spend on shirts and food for the game.

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October 7, 2014

North Carolina Workers Killed on the Job: Proving a Workers' Compensation Claim


Sometimes an accident is simply an accident where nobody is at fault. In the context of most personal injury cases, the plaintiff tries to establish that, while we often use the term accident, it was actually negligent conduct by the defendant that caused personal injury or wrongful death. This is required for a plaintiff to collect. However, in a workers' compensation claim, an injured employee can receive benefits if he or she was injured on the job, even if the injury really was caused by an accident that nobody could have prevented.

wood---tall-838468-m.jpgAccording to a recent news report from the News & Observer, a worker was killed at a wood products company in Moncure, North Carolina when a large piece of machinery fell on him. Authorities are saying that the 29-year-old worker's death is under investigation, but they have not released details. The Occupational Safety and Health Administration (OSHA) has been contacted, as it is their responsibility to investigate all work-related deaths and other serious injuries in the United States.

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October 4, 2014

Gaytan v. Wal-Mart: Employees and Contractors in Workers' Compensation Cases


Gaytan v. Wal-Mart, a case from the Nebraska Supreme Court, involved a worker ("employee") who was killed in an accident that occurred on a construction site. The facts are somewhat confusing, but essentially a general contractor was hired by storeowner to build a new store location. The general contractor subcontracted the construction of the roof to a roofing company that hired employee to work on the construction project.

airtube-628899-m.jpgAmong his other responsibilities, employee was responsible for installing steel decking sheets on the roof of the building. The sheets were first put in the approximate place to be installed, then aligned and permanently installed though the use of a Controlled Decking Zone (CDZ). A controlled decking zone is the process by which corrugated steel decking sheets are secured on a construction project. The CDZ is set up to help aid in worker safety.

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October 3, 2014

Walston v. Boeing Co.: Workers' Compensation as an Exclusive Remedy


Walston v. Boeing Co., a case from the Supreme Court of the State of Washington, involved petitioner who was acting as the personal representative for the estate of decedent. Court records indicate that decedent was employed by respondent from the mid-1950s through the mid-1990s. In 1985, decedent was exposed to asbestos. That year, maintenance workers were repairing pipe insulation in the ceiling above the hammer shop in which decedent worked.

airplane-1445545-m.jpgThe maintenance workers wrapped the pipes to contain flaking of the asbestos insulation. These workers were also using ventilators and wearing hazmat suits to protect them from exposure to asbestos dust. Asbestos fibers can become embedded in the tissue of the lungs and other organs and cause a deadly type of cancer known as mesothelioma, as well as lung cancer.

During the entire time the work was being performed overhead, the workers in the hammer shop down below were not wearing any protective clothing or ventilators. Decedent placed a plastic sheet over his toolbox to protect it from the flakes that were falling onto it. At one point, decedent and his coworkers complained to a supervisor, but they were told to get back to work but try to avoid working directly under the overhead activity.

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September 29, 2014

Malcomson v. Liberty Northwest - Denial of Insurer's Ex Parte Communication With Doctors


Our Spartanburg workers' compensation attorneys know that in some cases, insurers providing coverage will seek to communicate with medical providers outside the patient's knowledge or participation. This is called ex parte communication, and it can only be done with a patient's explicit, written consent.
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While that communication may sometimes necessary for certain administrative purposes, the Montana Supreme Court recently ruled in Malcomson v. Liberty Northwest the communication should not be unlimited, particularly when information gleaned is broad and not relevant to the immediate case. Further, the court affirmed an earlier ruling by the state's workers' compensation commission that a patient's refusal to allow unmitigated access to her health care providers regarding her case violated her constitutional rights to medical privacy.

This is a case that illustrates why it is important to have an attorney assisting you from the outside of filing a claim.

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September 27, 2014

Dozier v. American Red Cross - SC Supreme Court Weighs Workers' Compensation Appeal


The South Carolina Supreme Court recently weighed the appeal of a plaintiff in a workers' compensation case who alleged lower courts had erred in failing to find her permanently totally disabled, due to her 5-pound weight lifting restriction imposed after a work-related injury.
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In Dozier v. American Red Cross, the high court affirmed the determination of lower courts, finding job opportunities were available to her in this weight-lifting restriction range, and she failed to properly preserve her claim on the major underlying condition, Complex Regional Pain Syndrome/Reflex Sympathetic Dystrophy, a progressive ailment of the nervous system.

Our Rock Hill work injury attorneys know cases like this, where injuries or ailments may be obscure or ambiguous, are difficult to prove. It's imperative to work with an experienced lawyer, or else the claim may have little chance of succeeding.

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September 24, 2014

Lewis v. N.C. Department of Corrections - Mandatory Interest on Lump Sum Permanent Disability Award


The North Carolina Court of Appeals recently awarded interest on a lump sum permanent workers' compensation disability award, finding state law mandated it under N.C.G.S. ยง 97 - 86.2. prison1.jpg

The statute indicates that in any workers' compensation case in which the claimant is successful upon appeal, the company or its insurer "shall pay" interest on the final award or any unpaid portion from the date the claim was first made.

Our Asheville workers' compensation attorneys know the key point in the statute, pertaining to the case of Lewis v. N.C. Department of Corrections, is "shall pay."

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September 21, 2014

Harris v. Haynes: On Worker's Compensation in Car Accident Cases


Harris v. Haynes, an appeal heard before the Supreme Court of Tennessee, involved a claimant ("Claimant") who was working as a police officer for the local sheriff's office. Claimant was assisting with a traffic control operation when a woman driving a pickup truck ("Defendant") ran into him.

480202_broken_car.jpgClaimant applied for and was awarded workers' compensation benefits to compensate him for lost wages and medical bills. Claimant also filed a civil lawsuit against Defendant under a theory of negligence. The trial court entered a default judgment against Defendant and awarded Claimant and his wife $1,250,000 million in damages.

Claimant also filed a claim against the state risk management ("SRM") department under the uninsured motorist (UIM) plan. Claimant and SRM filed cross summary judgment motions. While parties acknowledged that claimants who receive workers' compensation benefits are not also eligible to collect on an uninsured motorist policy, Claimant argued that a portion of the state code conflicted with that prohibition under this particular set of circumstances.

Our Charlotte, North Carolina injury attorneys who represent people injured on the job understand that there are often issues that arise when there are more parties involved in a workers' compensation action than simply the employee and his or her employer.

The trial court granted SRM's motion for summary judgment on grounds that the SRM is a state insurance pool and Employer had specifically rejected UIM coverage when signing the policy contract.

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September 19, 2014

Schmitz v. U.S. Steel Corp: On Retaliation for Filing a Workers' Compensation Claim


In Schmitz v. U.S. Steel Corp., a case from the Minnesota Supreme Court, a worker ("Claimant") filed a civil lawsuit against the company at which he was formerly employed ("Employer") on claims of retaliatory discharge and threats to discharge his workers' compensation claims.

1314902_medical_doctor.jpgClaimant was working as a mechanic at Employer's steel plant when he injured his back. He felt a pop and fell to the ground. Claimant immediately told his supervisor about the accident. Claimant did not fill out an accident report that day, because, according his testimony, it was the foreman's job to fill out the report. Our Spartanburg workplace injury attorneys know that promptly reporting any on-the-job injury and ensuring an accident report is generated greatly increases your chance of obtaining a workers' compensation benefits award.

In Schmitz, Employee called his foreman the next day and said that he was experiencing pain in his side and back. According to court records, Employer's agents warned Claimant not to fill out a workers' compensation claim form. He was told that Employer would not like it if he filled out the report. He asked if they would fire him if he filled out the report, and his supervisor allegedly told him that, yes, they would fire him.

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