Tag Archives: workplace injury

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Injuries to In-Home Care Providers: Compensable?

Today’s post comes from guest author Charlie Domer from The Domer Law Firm.

A growing segment of the workforce involves individuals providing in-home medical care and assistance to private individuals. The assistance can range from a few hours per day, to 24/7 medical and domestic care for incapacitated individuals.

If the in-home care provider gets hurt while performing work duties, does this entitle the care provider to worker’s compensation benefits?

In a previous blog post, we discussed nannies, baby-sitters and domestic servants. “Home care providers” are treated differently (though an argument could be made that the care recipients from a nanny or from an in-home care provider are equally dependent — a baby and an elderly individual often have similar needs). The Commission held that persons providing personal/medical care to an “invalid” are not domestic servants (and thus, not statutorily exempt from the Act’s coverage). (Ambrose v. Harley Vandeveer Family Trust, WC Claim No. 86-39393 (LIRC Feb. 28, 1989); Winkler v. Vivian Smith, WC. Claim No. 1998059089 (LIRC Jun 29, 2000))

The Department generally considers that persons hired in a private home to give primary care to an individual whose duties involve assisting  in walking, bathing, preparing meals and special diets, supervising use of medications and exercise therapy and other duties commonly associated with the meaning of primary-care giver, meet the definition of home-care provider.

 If the domestic servant exemption does not apply, the question is: are home care providers to be considered as employees of the cared-for individual?

Interestingly, another statutory exception which may apply involves that of the cared-for individuals enterprise, as the person providing personal/medical care does not perform these services as part of the trade, business, occupation or profession of the cared-for individual (102.07(4)(a)2). Since the cared-for individual is not in the business of providing in-home care, there would be no worker’s compensation coverage, unless the cared-for individual elects to award these. Thus, the Department, based on this statutory exception, suggests that no employer-employee relationship exists under the Act.

As the Commission has left this issue largely undecided in the case of a private cared-for individual hiring their care provider, arguments exist both for and against coverage. Alternatively, if a county referred the home care provider to the individual and the county set the provider’s rate of pay, the county is the employer for worker’s compensation purposes. (See Cobb v. County of Barron, WC Claim No. 2006-043003 (LIRC Dec. 11, 2008); Nickell v. Kewaunee County, WC Claim No. 94064155 (LIRC Sept. 24, 1996)).

 

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Learning Ladder Safety could Save you from a Painful Injury

Today’s post is by my colleague Leonard Jernigan of North Carolina.

The proper use of ladders may seem like something better left to common sense, but it really isn’t. Employers explicitly need to teach workers how to use ladders safely.

The Occupational Safety and Health Administration (OSHA) says that “falls from portable ladders are one of the leading causes of occupational fatalities and injuries.” A few weeks ago a gentleman came to see me who had orthopeadic surgical wires and metal bars sticking out of his arm (for those who are not too sensitive, click here to see the photo)

He had fallen from a ladder about 15 feet and landed squarely on his hands and broke both arms.  No one was holding the base of the ladder and the ladder was more than 15 years old. Wires and metal bars were now holding his bones in place, and workers’ compensation benefits were holding him financially in place. However, since he was only making $11 dollars an hour his weekly compensation benefits were small. As you probably know, the Workers’ Compensation Act does not provide money for pain and suffering, or lost income from other jobs (think about the man who takes on two jobs to maintain a higher standard of living for his family; if he is hurt while working at one job, he is only paid for the income loss at that job, not both).

The employer has a duty to train and teach its employees how to use a ladder. Many employees (particularly young ones) have no idea how dangerous ladders can be: they assume the ladder will hold the load and will be secure when placed in position, and that it is free of defects, no matter how old. OSHA has a list of  safety considerations and these tips can be found at the Department of Labor’s web page (click here for a PDF version).

Click through for a graphic video of a ladder accident published by prevent-it.ca, a website run by the Province of Ontario (Canada)’s Ministry of Labor. Be warned that this mock-up video is a public service announcement intended to teach safety. It is scary and not for the faint of heart.

The next time you pull out a ladder at work or at home, think about these warnings and use proper safety techniques to avoid injury.

Image: Ambro / FreeDigitalPhotos.net

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Temporary Employees Cannot Be Excluded From Workers’ Compensation

Temporary employees are eligible for workers’ compensation benefits.

According to a recent decision by the Texas Supreme Court, a temporary employee cannot be excluded from an employers’ workers’ compensation policy.

In 2005, Rafael Casados was killed on his third day at work at a grain storage facility owned by Port Elevator-Brownsville L.L.C. Because Casados was a temporary employee of Port Elevator at the time of his death, he was initially awarded a liability ruling of $2.7 million directly from Port Elevator. However, according to the latest Supreme Court ruling, Casados’s family should receive remedy under Port Elevator’s workers’ compensation policy instead. Port Elevator’s insurance provider is liable for Casados’s death benefits, despite the fact that Port Elevator never paid workers’ compensation insurance for any of their temporary employees.

According to the decision: “If Port Elevator’s policy had set out certain premiums solely for temporary workers and Port Elevator had not paid those premiums, Casados would still have been covered under the policy and the failure to pay premiums would be an issue between Port Elevator (their insurance provider).”

 

 

Photo Credit:sixninepixels / FreeDigitalPhotos.net