January 13, 2015

Paulino v. Chartis Claims - Bad Faith Insurance Claim in Workers' Compensation


Workers' compensation claims in South Carolina are bound by exclusive remedy, meaning you can't sue an employer for negligence resulting in a work-related injury or illness. However, there are some cases in which a workers' compensation insurance company can be sued for acting in bad faith.
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Of course, insurance companies in general are known for practices intended to modify compensation or sidestep paying claims altogether. However, when these efforts are carried out in bad faith, they are considered to be so egregious as to warrant punitive damage payouts equaling up to three times the amount of the original claim (treble damages).

Some examples may include nonpayment of a legitimate claim, mass denial of claims or internal incentive programs that encourage adjusters to deny payouts.

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January 11, 2015

South Carolina Supreme Court Broadens The Scope of Covered Workplace Injuries


Under South Carolina's workers' compensation rules, employees are covered for any injury that happens while doing their jobs. This can include injuries that happen outside of normal worksites or outside of normal working hours as long as the injuries are directly related to job duties. kickball-606231-m.jpg

Sometimes, it is not clear whether a specific instance of getting hurt at work should entitle an employee to workers' compensation benefits. Workforce.com, for example, recently discussed as case in which the South Carolina Supreme Court ruled that injuries that occurred during a voluntary kickball game were covered. This decision broadened the definition of what counts as an injury within the scope of employment.

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January 9, 2015

Across Big Sky Flow Testing, LLC v. WSI - Greater Weight of Evidence in Workers' Comp Case


Sometimes, there are multiple possibilities for what might have caused an illness, injury or death. When pursuing a workers' compensation claim for benefits, alternative theories of causation presented by your company's insurer could harm your claim. It's imperative to provide ample evidence of your position in order to overcome these alternative theories.
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While in the criminal justice system, the standard of proof is "beyond a reasonable doubt," in workers' compensation cases, the standard is "with a reasonable degree of medical certainty" or "the greater weight of the evidence." It's essentially the court's measure of credible proof on one side versus the amount of credible proof on the other. It's based on the persuasiveness or believability of the evidence, so it's important to make sure expert witnesses are amply certified and experienced and their research is fully supported.

It also means mounting an effective challenge to any alternative theories posed by the other side, casting doubt on their conjectures.

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January 7, 2015

A Look Ahead to Changing OSHA Regulations in 2015


The Occupational Safety and Health Administration (OSHA) is vested with the responsibility to make rules related to workplace safety. OSHA suffers from being understaffed and underfunded, which means inspections of workplaces do not occur with sufficient frequency. The process of making rules can also be prolonged, leaving many lingering work safety issues that endanger employees due to lack of regulation. law books.jpg

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January 5, 2015

Seamon v. Rand and Travelers - Repetitive Motion Injury Compensation Affirmed


In many workers' compensation cases, the illness or injury at issue is one that occurs over time or in some cases can occur naturally for some people, due to genetics or other factors. In these situations, no one doubts the severity of the condition, but proving causation between work-related duties and the injury/illness is central.
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Such was the case in Seamon v. Rand and Travelers, recently reviewed by the North Carolina Court of Appeals, following a decision favoring plaintiff by the North Carolina Industrial Commission.

At issue was a condition known as distal occlusive disease and thrombosis in one hand and aneurysms in both hands, resulting in blood clotting in his fingers. Clots had to be surgically removed from plaintiff's hands, and several fingers were amputated.

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January 3, 2015

New OSHA Injury Reporting Requirements Take Effect for Carolina Employers


January 1, 2015 marks the first day that companies are subject to new reporting requirements established by the Occupational Safety and Health Administration (OSHA). Employers need to be aware of the new reporting requirements so they can fulfill their obligations. Workers also need to know the rules to ensure that their workplace injuries are properly documented. notice-878922-m.jpg

A Charlotte work injury attorney knows that accurate reporting of workplace injuries is essential to increase the safety of employees and improve working conditions. OSHA and other regulators need to know the top causes and types of injuries to try to make effective rules to improve safety. Employers and employees also need to be aware of what the biggest risks to workers are so they can take the necessary steps to correct conditions that cause workplace accidents.

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December 31, 2014

Lipe v. Starr Davis Co. et al. - NC Workers' Compensation for Asbestos Disease


Workers who are exposed to asbestos while on the job in North Carolina should explore the possibility of workers' compensation benefits - even when they don't learn of the related disease until many years later, as is often the case.
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Usually, workers' compensation benefits are something awarded soon after the injury-causing incident. However, exposure to asbestos causes diseases that are latent, and often asymptomatic until years later.

It's worthwhile to explore the possibility of a third-party lawsuit against the manufacturers of asbestos for such injuries, though it's true those are time-consuming and the burden of proof much higher. In workers' compensation cases, plaintiffs needn't show the employer was negligent in exposing workers to the hazardous material, only that such exposure occurred in the course of employment and proximately caused the illness.

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December 26, 2014

Morales v. Zenith Ins. - Wrongful Death Payout Barred by Exclusive Remedy


The exclusive remedy provisions of state workers' compensation law bar the estate of a worker killed on the job from receiving a $9.5 million wrongful death judgment against his former boss and insurer.
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That's according to a recent ruling by the Florida Supreme Court, which, like the courts in South Carolina, recognize the exclusive remedy provision as it pertains to work-related injuries and deaths.

In Morales v. Zenith Ins. Co., decedent worker was crushed to death by a palm tree that was being unloaded form a trailer while working for a lawn maintenance firm in 1997. The man's widow accepted a workers' compensation settlement for her husband's death from the employer and the insurer. The release agreement specifically indicated workers' compensation was the exclusive remedy in the case. Prior to the conclusion of that settlement, however, plaintiff filed a wrongful death lawsuit in state court.

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December 26, 2014

Injuries at Holiday Work Parties May Not be Compensable


Every year at this time, companies across the country are hosting holiday parties, lunches and other gatherings. These events are usually not directly related to work, and are intended to simply give the team a break, boost morale or celebrate a good year and thank all for a job well done.
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But of course, injuries can occur at any time. Holiday parties may in some cases result in an increased risk of injury if alcohol is served or if there is a need to drive off site to the event.

Whether injuries stemming from these incidents will be compensable is a difficult question, and the answer is going to rely on a host of factors, including:


  • Whether the company required or expected workers to attend

  • Employees were paid to participate

  • The incident occurred on company property and the property contained an unsafe condition the employer failed to timely correct

  • The employer directly or impliedly endorsed the event and/or derives a benefit from it

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December 22, 2014

Ademovic v. Taxi USA - Professional Driver Work Injuries in North Carolina


North Carolina has a significant number of professional commercial drivers. In fact, the Bureau of Labor Statistics reports the number of heavy and tractor-trailer truck drivers in the state is about 48,000, ranking it 10th in the nation for the most truck drivers.
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Often, these workers face an increased risk for violence. They tend to work solo, often and night, and for commercial passenger drivers, they frequently come in contact with the public.

While any injuries arising out of or in the course of work may fall under the umbrella of workers' compensation benefits, a growing number of employers are getting around this by establishing a system whereby workers are not "employees," but rather "independent contractors." The latter are not entitled to workers' compensation benefits. These workers might have the option to sue the employer, but they'd have to prove negligence. That can be tough in a case of intentional violence by a third-party away from a stationary work site.

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December 20, 2014

Wyatt v. Haldex Hydraulics - Heavy Lifting Accidents at Work


Lifting heavy items is one of the top causes of workplace injury in the U.S., according to the Occupational Safety & Health Administration. In fact, the Bureau of Labor Statistics reports more than one-third of all injuries resulting in missed work days were the result of back and shoulder injuries - often attributed to cumulative trauma and overexertion. Heavily lifting is often the root cause of both.
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Still, employers and workers' compensation insurers will often try to downplay the physical impact of such activities.

In the recent case of Wyatt v. Haldex Hydraulics, the North Carolina Court of Appeals was asked to consider whether a grant of benefits by the North Carolina Industrial Commission to a worker injured by heavy lifting was proper. Ultimately, the appellate court affirmed.

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December 18, 2014

Auto-Owners Insurance Co. v. All Star Lawn - Worker Title Central to Injury Claim


If you are injured on the job in South Carolina, you are almost certainly entitled to compensation. However, the type of compensation you may reasonably pursue is going to depend on your employment classification. Specifically - are you an employee or an independent contractor? worksign.jpg

Employees hurt at work are entitled to receive workers' compensation benefits through their employer's insurer. However, this is their exclusive remedy. They cannot then turn around and sue the company for personal injury damages, though there might be an option for a third-party lawsuit in certain situations. Meanwhile, an independent contractor doesn't have the option to collect workers' compensation. He or she can, however, file a personal injury lawsuit against the employer and/or general liability insurer.

There are pros and cons to each classification, depending on your circumstance. But the most important thing to remember is that just because your employer classifies you a certain way doesn't necessarily mean the courts will agree.

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December 16, 2014

"Tech Injuries" a Growing Health Concern


A large number of American workers spend their days in an office, sitting at a chair, staring at a computer. While repetitive stress injuries, including carpal tunnel, are a rising source of workers' compensation claims, there are other "tech injuries" that are becoming a growing health concern for physicians, employees, as well as employers. Tech injuries are not only caused by certain postures we use when hunched over laptops, tablets, and mobile devices, but other strains on the body that could take their toll over the years, and decades.

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According to a 2010 study, children who were looking at screens more than 2 hours per day were 60% more likely to have a psychological problem in later years. Kids between the ages of 11 to 16 who used iPads suffered back pain. Another study found that 84 percent of young persons, aged 18 to 24 suffered back pain, which lost in an average of 1.5 working days lost per year. These are only a few of the myriad injuries that can set in on younger and older users. With more Americans working on computers rather than performing heavy labor activities, workers' compensation claims are changing as well. Here are some common "tech injuries" reported by American physicians:

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December 12, 2014

North Carolina Pays High Price for Medical Treatment of Workers


Nearly every employee in North and South Carolina is covered by the workers' compensation system. In industries and jobs where the rate of accidents and injuries is higher, employers may have greater workers' compensation claims and costs. According to a new study by the Workers Compensation Research Institute (WCRI), hospitals in North Carolina pay higher costs for work-related injuries than in most states. The report, titled "CompScore Medical Benchmarks for North Carolina," assessed medical costs between 2007 and 2012 and compared the data to 15 other states. The report concluded that overall, medical payments were higher in North Carolina than in other states.

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In addition to the overall costs, there were also varying medical payments depending on the provider. According to the analysis, North Carolina had the highest cost per claim among the states evaluated in the WCRI study. Despite the higher cost of hospital care, the state had lower "nonhospital" costs related to workers' compensation. Public health officials, legislators, and hospital officials have worked to tackle the issue of rising health care costs in North Carolina and nationwide. In 2009, the state made significant headway in reducing the hospital outpatient reimbursement rate. For most hospitals this rate fell from 95 percent to 79 percent of charges.

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December 10, 2014

World Trade Center Injuries and the Danger of "Rush Jobs"


One of the world's most notorious construction sites has been haunted by a series of accidents and injuries related to dangerous working conditions. Rebuilding "Ground Zero" into the new World Trade center has resulted in many serious injuries that often went unreported. According to a Daily News investigation, over 30 serious injuries that occurred on the site were not reported to the Occupational Safety and Health Administration (OSHA). Many of the workers suffered from serious and permanent injuries, including spinal cord fractures and broken bones. The report was based on court documents and city records, medical reports, and OSHA reports.

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Workers endured a host of injuries, including getting struck in the head, falling from scaffolding, or getting struck by a steel plate. These were a few of the severely injured workers whose cases were never reported to OSHA. Construction zones are widely known have some of the most dangerous working conditions. Contractors, subcontractors, property owners, and other managers involved in construction projects must ensure that equipment is safe and maintained, that sites are secure, and that workers are properly trained. In these accident cases, some of the workers were able to recover, but others are still in rehabilitation or suffering from permanent injuries.

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