Today’s post comes from guest author Paul J. McAndrew, Jr. from Paul McAndrew Law Firm.
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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Corporations sometimes hire private investigators to verify that your claim is not fraud
Today’s post comes from guest author Leonard Jernigan of North Carolina.
As a workers’ compensation attorney I find it interesting that many people in the public question the disability status of injured workers. Let’s assume for the moment that you have sustained an injury on the job and you’ve been out of work for 5 months after back surgery. When you are unable to return to work quickly, the insurance industry has a lot of tools at its disposal to verify your disability status. They can pour over your medical records, pre- and post-injury, looking for any piece of evidence to deny your claim. They can send your file to lawyers who review medical records and recorded statements to potentially attack your credibility and honesty. They can hire a nurse to attend your appointments and speak with the physician and the staff, as well as obtain information directly from you. They can do background searches on you to see if you have a criminal or civil record. Obviously they will check to see if you ever filed a workers’ compensation claim before. They will also do social media and Internet searches on you and your family members (Facebook, Twitter, LinkedIn, etc.). They also can hire private investigators to follow you and your family around and take video recordings of your activities. With all these resources at the disposal of the insurance company, it’s hard to believe that many cases of employee fraud slip through the system.
A private investigator pretended to be a potential buyer and spent an hour or more going through the house.
We have one client recently who was followed by several private detectives for more than a year. They not only followed him around, but also followed his wife and son, who have no workers’ compensation claim. Another client had to sell his house because of his disability. A private investigator pretended to be a potential buyer and spent an hour or more going through the house. Does the concept of “Big Brother” come to mind? Are you concerned about invasion of privacy, particularly for family members, friends, and others who may be seen in such videos? We always tell our clients such activity may occur so don’t be alarmed by it, but that isn’t too comforting to people who are struggling through health issues, who have depression and anxiety problems, and who are sensitive to privacy concerns.
It would be interesting if the roles were reversed and employers who underpay premiums by misclassifying the status of their employees, who fail to purchase insurance required to protect their workers, and who don’t follow proper safety regulations that cause injury, were followed this closely by employees or regulators who administer the workers’ compensation program. I have no doubt that these employers and insurance representatives would be outraged.
Today’s post is from our colleague Charlie Domer of Wisconsin.
The law provides mandatory minimum ratings of disability benefits for injuries and surgical procedures
Surgeries are commonplace after a work injury. When an injured worker in Wisconsin has a post-injury surgery, that worker is ordinarily entitled to a minimum percentage of permanent disability.
Permanent partial disability (PPD) generally represents a physician’s assessment of a worker’s functional loss. PPD is payable at a weekly rate equal to two-thirds of the employee’s average gross weekly earnings at the time of the injury, subject to a maximum rate (the rate in 2011 and 2012 is $302/week).
Administrative rules relevant to the Worker’s Compensation Act (Section DWD 80.32) provide mandatory minimum ratings of PPD for injuries to various body parts and surgical procedures. For example:
- A laminectomy (removal of disc material) at one level of the lumbar spine (e.g., L4-5) carries a minimum 5% disability;
- A spinal fusion at the same level (e.g. L4-5), results in a minimum 10% disability;
- Total hip replacements carry a minimum 40% PPD (while a partial hip replacement results in 35% PPD);
- A total knee replacement has a minimum PPD of 50% (partial knee replacement is 45%);
- An anterior cruciate ligament (ACL) repair is 10% PPD minimum; and
- A knee meniscectomy results in 5% PPD minimum.
If a worker has one of the listed procedures, they receive the minimum PPD percentage. To calculate the value, we look to the applicable percentage, based on the number of weeks the body part is “worth” under the statutes. For example, a knee is worth 425 weeks under the statutes, so the 20% PPD to the knee is 85 weeks (20% of 425) at the $302/week rate for a 2011 injury, which amounts to $25,670.
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