Today’s post comes from guest author Todd Bennett, from Rehm, Bennett & Moore.
Do you drive a company vehicle as part of your job?
Many find themselves in the situation where they travel regularly, or on a special errand from time to time, as part of their job.
In the unfortunate scheme of things, if you are involved in an accident while driving, whether it is your fault or not, you are covered by and entitled to workers’ compensation benefits just as any other employee who suffers an accident on the premise of an employer.
More importantly, if the cause of the accident was not due to negligence of your own, but that of a third party, you have a right to bring a third-party negligence action against the party responsible for causing the vehicle accident. This right is separate and distinct from the workers’ compensation benefits that you are entitled to. Further, you also potentially have the right to bring an underinsured motorist coverage claim under your employer’s motor vehicle coverage as well as your own underinsured motorist vehicle coverage. These, too, are separate and distinct from the workers’ compensation benefits you are entitled to.
It is important to note that the employer would have a subrogation right to be reimbursed for workers’ compensation benefits paid on your behalf against that of any third-party negligence claim where you obtained a recovery. However, as underinsured motorist coverage is typically viewed as contractual benefits in nature, there is no subrogation right from your employer if underinsured benefits are obtained in Nebraska.
If you or someone you know was injured in a motor vehicle accident that arose out of and in the course of one’s employment, there are significant issues to be aware of in order to obtain a recovery that meets your needs. If you have any questions or uncertainty when dealing with this point of law, please seek the advice of an experienced attorney who can help steer you in the best course of action.
Today’s post comes from guest author Jon Gelman, from Jon L Gelman LLC.
University of Iowa, College of Public health, recently reported the death of a bathtub refinishing technician who died from the inhalation of paint stripper vapors.
The apartment manager and first responders reported a strong chemical odor in the second story apartment.
In 2012, a 37-year-old female technician employed by a surface-refinishing business died from inhalation exposure to methylene chloride and methanol vapors while she used a chemical stripper to prep the surface of a bathtub for refinishing. The technician was working alone without respiratory protection or ventilation controls in a small bathroom of a rental apartment. When the technician did not pick up her children at the end of the day, her parents contacted her employer, who then called the apartment complex manager after determining the victim’s personal vehicle was still at the refinishing company’s parking lot. The apartment complex manager went to the apartment unit where the employee had been working and called 911 upon finding the employee unresponsive, slumped over the bathtub. City Fire Department responders arrived within 4 minutes of the 911 call. The apartment manager and first responders reported a strong chemical odor in the second story apartment. There was an uncapped gallon can of Continue reading
Today’s post comes from guest author Leila A. Early from The Jernigan Law Firm.
British Petroleum (BP) supervisors Donald J. Vidrine and Robert Kaluza were indicted on manslaughter charges in the deaths of 11 fellow workers in connection with the 2009 Deepwater Horizon explosion in the Gulf of Mexico. David Rainey, a BP deepwater explorer, was charged with obstruction of Congress and lying about the size of the spill. These indictments were in addition to a record $4.5 billion in criminal fines that BP agreed to pay for the disaster, which will be paid out over 5 years.
Mr. Vidrine and Mr. Kaluza were negligent in their supervision of key safety tests performed on the drilling rig, and they failed to phone engineers on shore to alert them of problems in the drilling operation. These charges carry maximum penalties of 10 years in prison on each “seaman’s manslaughter” count, 8 years in prison on each involuntary manslaughter count and a year in prison on a Clean Water Act count. Mr. Rainey obstructed Congressional inquiries and made false statements by underestimating the flow rate to 5,000 barrels a day even as millions were gushing into the Gulf. He faces a maximum of 10 years in prison.
By charging individuals, the government was signaling a return to the practice of prosecuting officers and managers, and not just their companies, in industrial accidents where reckless and wanton conduct is involved. The practice of charging individuals was more prevalent in the 1980s and 1990s but has recently been a rare occurrence, with company fines being the only penalty sought. Some wonder if the $4.5 billion criminal settlement is enough to penalize a corporation after 11 people were killed, and that if a culture of disregard for safety exits in a corporation that is “too big to fail” then the only way to stop that culture is to send those who knew about it to jail. We shall see.
Today’s post comes from guest author Leonard Jernigan from The Jernigan Law Firm.
During cancer research in 1986 an accident created the first man-made nanoparticle, an incredibly small particle which can absorb radiant energy and theoretically destroy a tumor. One type of nanoparticle is 20 times stronger than steel and is found in over 1,300 consumer products, including laptops, cell phones, plastic bottles, shampoos, sunscreens, acne treatment lotions and automobile tires. It is the forerunner of the next industrial revolution.
What is the problem? Unfortunately, nanoparticles are somewhat unpredictable and no one really knows how they react to humans. A report out of China claims that two nano-workers died as a result of overexposure, and in Belgium five males inhaled radioactive nanoparticles in an experiment and within 60 seconds the nanoparticles shot straight into the bloodstream, which is a potential setup for disaster. In a survey of scientists 30% listed “new health problems” associated with nanotechnology as a major concern.
Lewis L. Laska, a business law professor, wrote an article in Trial Magazine (September, 2012) in which he advised lawyers to become knowledgeable about nanoscience and be aware of the potential harm to workers and others who come in contact with this new technology, particularly because the EPA, FDA and OSHA have neither approved nor disapproved the use of nanostructures in products. It has been said that workers are like canaries in the cage (in mining operations), and if nanoscience is a danger then workers’ compensation lawyers will be the first to see it and appreciate it.
A garment fire in Bangladesh killed 112 workers last week
Today’s post comes from guest author Tom Domer from The Domer Law Firm.
A garment fire in Bangladesh killed 112 workers last week, harkening back to the tragic Triangle Shirtwaist fire 100 years ago on March 24, 1911, which claimed the lives of 146 young men and women, mostly immigrant garment workers. The Triangle fire galvanized a broad spectrum of reformers and reforms, one of which was worker’s compensation. In the aftermath of the Triangle fire, many states adopted worker’s compensation laws. (Wisconsin’s was the very first constitutional law in 1911.) Other reforms included workplace safety regulations, child labor laws, and enhanced fire inspections, among others.
There is a growing effort by worker groups to demand safety reforms in Bangladesh where factory fires have killed hundreds of workers in recent years.
An additional tragedy in the Bangladesh fire, whose products are sold here in America Mart, was the revelation that managers may have lowered gates to prevent employees from leaving because they thought it was a false alarm. There is a growing effort by worker groups to demand safety reforms in Bangladesh where factory fires have killed hundreds of workers in recent years. Photos taken by workers showed labels for Wal-Mart’s private label Faded Glory in the remains, along with clothing for a number of other United States labels including work wear brand Dickies.
The analogies to the Triangle Shirtwaist fire are striking. In that fire, people on the 10th floor, mostly in administrative offices, were able to escape to the roof of an adjoining building. Workers on the 8th floor fled using the stairs, the fire escape and elevators. However, Continue reading
Today’s post comes from guest author Kit Case from Causey Law Firm.
I reviewed a workers’ compensation claim for a potential client nine months ago. At the time, I told him of several items that I saw as upcoming issues in his case and shared my opinion about why it would be important for us to start clearing those issues off the deck sooner rather than later. Would he be found employable with no services or would he receive just a bit of training to allow him to continue working in his field as a welder but in a lighter-duty capacity? Would the onset of depression be addressed under the claim and taken into consideration when making employability decisions? Would his level of permanent impairment be under-rated through the typical Independent Medical Evaluation (IME) process or would his surgeon be willing to provide a rating that more accurately reflects his limitations? I shared my concerns about his case, explained the process I would recommend for addressing these concerns and discussed the fees and costs to be expected. He indicated he wanted to go forward with representation.
I did not hear from him again, until yesterday. He left me a message asking for help with his claim. I looked at the case this morning before returning his call. He has been found to be employable with no additional retraining, so he will likely not be able to continue with his favored career but, instead, can look forward to his new line of work as a small parts assembler. He underwent an IME that conservatively rated his level of permanent impairment and approved the job analysis for small parts assembly. His attending physician signed the form letter to indicate concurrence with the IME results and, on this basis, the Claims Manager has found him employable and is closing the claim. What about the depression? Not addressed by the IME, so the Claims Manager is construing the attending physician’s signature on the concurrence form letter to mean that he is also not contending that depression is an issue, so she is denying this condition under the claim.
I know there are two sides to every argument, and I know that an employer representative would look at this same fact pattern and see a job well done, but I am a claimant’s advocate, so I share my thoughts from only that perspective. I see a situation where I now have a 15-day deadline for filing a dispute with the Vocational Dispute Resolution Office if I want to argue that Continue reading