What Does That Stand For? Commonly Used Acronyms in Workers’ Compensation Cases

Today’s post comes from guest author Brianne Rohner, from Rehm, Bennett & Moore.

Every profession has certain turns of phrase or acronyms they use on a daily basis that, to the layperson, mean very little and may only serve to add confusion to an already difficult issue. The legal profession and the representation of injured workers is no different. Injured workers often find themselves traveling down a confusing road armed only with directions written in an unfamiliar or foreign-sounding language. The experienced attorneys at our firm navigate clients down this road on a daily basis.  

Below is a list of commonly used acronyms to assist in understanding what is happening with your workers’ compensation case when everyone around you is suddenly speaking another language. Please keep in mind that the accompanying definitions are very general, and you should seek the advice of an experienced workers’ compensation attorney for more information or assistance with your case. Please also see the links for other blog posts for more information on some of these issues.    

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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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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).”

 

 

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