Articles Posted in Workers’ Compensation Procedures

The estate of a school teacher who died of mesothelioma can hold the school district liable that she for worked at the time of her alleged exposure to asbestos. teacher

That’s according to a ruling by the Commonwealth Court of Pennsylvania, which ruled that so long as the exposure leading to illness fell within one of the exceptions to governmental immunity, the case can proceed. The case is noteworthy for the fact that often, suing an employer for workplace injuries is barred under workers’ compensation exclusivity rules.

According to the case’s court records , plaintiff worked for the district as a high school mathematics teacher for a single year in the late 1950s. At the time, she was allegedly exposed to asbestos coming from dust in the pipes found in stairways, classrooms and hallways of the school. Of course, at that time many schools were constructed with asbestos-laden materials, including floor tiles, ceiling tiles and insulation. This was especially true for those who worked in the schools, those who were exposed to it day after day for years. Continue reading

A variable wage worker is one for whom wages are not consistent from month-to-month, week-to-week or sometimes day-to-day. The most common example of this is tipped workers, or those who rely on tips for the majority of their pay. Restaurant workers and those in the service industry usually top this list. server

When these employees are hurt on-the-job, the question of what they should receive in compensation is often a tricky one. Workers’ compensation is based on a percentage of a worker’s average weekly wage – specifically 66 and 2/3 percent the average weekly wage, not to exceed $978 a week as of 2017. As workers’ compensation lawyers, we usually can get this information easily for salaried workers. However, we often have to look more closely in cases where a worker receives variable wages or when he or she recently earned a raise or changed positions.

In a recent case before the Kentucky Supreme Court, the question regarding whether a worker was salaried or made variable wages was in question, as she had changed jobs in the months before the work injury.  Continue reading

The presidential victory of Donald J. Trump, as well as the outcome of a number of governor races across the country, could have a sizable impact in shaping the workers’ compensation landscape in the next several years. That was according to the hosts of Safety National’s Out Front Ideas, recently chronicled by The Claims Journal.work sign

Trump, as a Republican, has largely advocated for less government involvement in the regulation of business. Last year, officials at the U.S. Department of Labor were critical of the disparity among workers’ compensation systems from state to state. It’s the reason why a worker in Pennsylvania may be compensated significantly less for the same injury than a worker in Texas or North Carolina. For this reason, the department had strongly recommended retooling the system to set minimum federal standards for workers. However, given Trump’s politics, it’s likely this action will be killed or at least put on the back burner.

Another potential change we could see affecting the workers’ compensation system is the repeal and replacement of the Affordable Care Act (ACA), former President Barack Obama’s signature health care achievement. When the ACA was passed, there were numerous health insurers that backed out of the marketplace, which thrust prices higher as the competition fell. Less regulation could mean lower prices, but it could also mean less coverage for some people – including possibly some workers.

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Here in North Carolina, workers cannot receive workers’ compensation benefits while incarcerated, a law that was established in 1992 by the North Carolina Court of Appeals case of Parker v. Union Camp Corp. The question in that case was whether the imprisonment of a person already receiving workers’ compensation disability payments cuts off the employer’s duty to make payments during the confinement period. It was at that juncture an issue of first impression for North Carolina. The court did note existing statutes indicated the legislative intent was to deny prisoners workers’ compensation benefits while they are locked up. Specifically,  N.C.G.S. 97-13(c) holds the state’s workers’ compensation act doesn’t apply to prisoners being worked by the state. The statute allows the payment of limited benefits to prisoners, and it indicates that such benefits can’t begin until the prisoners’ discharge. prison

This provision has been challenged a few times, such as in the 2005 case of Easton v. J.D. Mowing. In that case, the plaintiff suffered a compensable work-related injury and was awarded $366 weekly until he was able to return to work. The plaintiff was then incarcerated for a probation violation for eight months. His employer sought to suspend those benefits while he was in prison, and the deputy commissioner granted that request. The Full Commission affirmed, as did the Court of Appeals, citing the Parker case.

Recently, the North Carolina Court of Appeals was again asked to weigh in on a case in which a worker’s disability payments were suspended during a period of incarceration. In Myles v. LMS, Inc., the plaintiff sustained a compensable injury. He was unloading a truck when the brake on the pallet jack failed, and the pallet pinned his leg, causing him to suffer a broken ankle. An orthopedic specialist performed surgery, which had to be followed up with a second surgery due to a complication. Then, he had to undergo a third surgery because it was revealed the first screw in his ankle was too long. The plaintiff had to wear a brace and could only do sedentary work with short periods of standing or walking.

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The constitutionality of Florida’s workers’ compensation system may still be challenged as plaintiffs in the case, who were denied review by the Florida Supreme Court, have asked the U.S. Supreme Court to weigh in.gavel5

In Stahl v. Hialeah Hospital, plaintiffs are challenging the constitutionality of significant changes made to Florida’s workers’ compensation law back in 2003. It’s just one of many states in which workers’ compensation protections have been rolled back in recent years. This is an example of workers fighting back.

The question raised in Stahl is whether Florida’s workers’ compensation system is an adequate exclusive remedy for workers who are injured.  Continue reading

The National Safety Council (NSC) has released a list of its top 7 workplace hazards.worker

Nothing on the list is particularly earth-shattering, but it all requires review, considering how many workers continue to be injured in accidents that are entirely preventable.

The NSC’s consultants travel the country year-round to conduct workplace safety audits for companies whose leaders want to ensure they are in compliance with not only the industry standards, but the law.  Continue reading

Workplace deaths in the U.S. have inched upward for the first time since 2010, according to the finalized data by the Bureau of Labor Statistics (BLS) on 2014 death statistics. workersengineers

The preliminary count of workplace deaths that year was 4,679, but the final figure was higher: 4,821. That makes it the highest annual total since 2010. It also brings the fatal work injury rate in the U.S. to 3.4 work deaths per 100,000 full-time (or equivalent) workers. That’s up form the 3.3 fatal work injuries per 100,000 that was reported in 2013.

What these figures mean is that we have 13 work-related deaths every single day in the U.S. That is more than a dozen families who saw their loved one off at the start of their shift and never got to see them come home.  Continue reading

South Carolina courts have long recognized that an employee’s pre-existing health conditions do not prevent that worker from having a compensable work injury – so long as the injury happened in the course of and arose out of the worker’s employment. So workers can’t be denied compensation for a work injury claim simply because he or she was more susceptible to injury than a person who was otherwise healthy. firefighter1

Further, pre-existing injuries that are aggravated by a work injury claim may be compensable. However, there has to be proof of aggravation.

This issue was raised in the recent case of Gill v. City of Charleston, which involved a firefighter injury in West Virginia.  Continue reading

Authorities in New Jersey recently reported on an incident involving a Port Authority worker who was struck by a hit-and-run driver, who was later located and arrested for DWI and leaving the scene of a crash.workzone

A host of similar incidents occurred in the Carolinas last year, including:

  • A South Carolina construction worker struck and killed on S.C. 170 in Greenville by an alleged drunk driver who fled the scene, but was later caught.
  • A state Department of Transportation worker killed in Goldsboro on U.S. Highway 70 at a construction site, where a 28-year-old driver had driven into the median. The driver, who was impaired, also had two children in the vehicle with her. The worker was survived by his wife and twin 18-month-old daughters.
  • A construction worker was struck on I-85 in Spartanburg County by a hit-and-run driver. He suffered critical injuries.

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Construction workers are often at serious risk of injury and even death, particularly when industry safety practices are not followed. steeltube

Claims for compensation in these matters – whether through the workers’ compensation system or by third party liability lawsuit – are often complicated by the fact that many construction sites have a number of entities and employers and contractors involved.

In the recent North Carolina Court of Appeals case of Bullard v. Peak Steel, plaintiff sought compensation via a third-party liability lawsuit against the construction company on whose site her husband was fatally injured. Trial court had dismissed the claim for lack of subject matter jurisdiction because it concluded the worker was in fact an employee of the defendant, meaning the Industrial Commission had jurisdiction over the claim. The appellate court ultimately affirmed this conclusion, meaning workers’ compensation death benefits would be her only recourse at this point.  Continue reading

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