Intoxication, Work, And Workers’ Compensation Don’t Mix

Today we have a guest post our colleague Paul McAndrew of Iowa.

Most of us know that, for both professional reasons and in the interest of safety, remaining sober while on the job is essential. However, it is important to also recognize that workers who are intoxicated at the time that they sustain a work injury stand a far lower chance of ever collecting workers’ compensation.

If the blood test shows the presence of alcohol or drugs, odds that the employee will be able to collect workers’ compensation are much lower.

This is because of the intoxication defense: if an employer can prove that intoxication was the cause of the workers’ injury, then they employer is not required to provide workers’ comp for that injury.

Now, there are some notable Continue reading →

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Nannies, Baby-sitters, And Comp Coverage: Yes, We Still Have “Domestic Servants”

Today we have a guest blog from our colleagues Nathan Hammons and Charlie
Domer of Wisconsin.

 

Most families in Wisconsin have hired a baby-sitter or nanny to watch their children. The pay generally is in cash for a defined period of time. Does the situation create an employer-employee relationship, entitling an injured baby-sitter to worker’s compensation benefits?

Under the Worker’s Compensation Act, most employers in the state are required to provide worker’s compensation coverage for their employees. Employers of ‘domestic servants’, however, are completely exempt from the requirement. (Wis. Stat. §102.07(4)(a)1.) Unfortunately, neither the Act or Wisconsin courts provide a definition. So, what exactly is a domestic servant?

Significantly, the Department appears to treat the prevalent positions of in-home baby-sitter or nanny as exempt from the Act, which could expose the in-home “employers” to general negligence claims.

The name ‘domestic servant’ is antiquated. It brings up old images of butlers, maids, and other people toiling away in the mansions of royalty and the wealthy. Indeed, search Wikipedia for ‘domestic servant’ and you’ll be directed to ‘domestic worker’, the modern term and one that doesn’t imply inequality in the workplace. Without citation or authority, a Department publication indicated that it has “consistently ruled that persons hired in a private home to perform general household services such as nanny, baby-sitting, cooking, cleaning, laundering, gardening, yard and maintenance work and other duties commonly associated with the meaning of domestic servant, meet the definition of domestic servant intended by the Act.” Significantly, the Department appears to treat the prevalent positions of in-home baby-sitter or nanny as exempt from the Act, which could expose the in-home “employers” to general negligence claims.

Consequently, nannies Continue reading →

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Employers Must Obtain And Maintain Workers’ Compensation Insurance Coverage

Today’s post comes to us from our colleague Todd Bennett of Nebraska.

Every employer not in agriculture, farm or ranch operations is required to obtain and maintain workers’ compensation coverage for all employees. Those employers who voluntarily and willfully fail to obtain and maintain coverage violate the law and subject themselves to significant risks.

If you are an employee who is injured in the course of your employment and you learn that your employer has not maintained workers’ compensation coverage for you, you can either file a claim against the employer in civil court or file a claim in the Workers’ Compensation Court.

Employers who try to avoid their legal obligations and avoid providing workers’ compensation coverage expose themselves to monetary judgments in civil court, stop-work orders from the Attorney General’s office, injunctions from continuing to operate their business, assessments against their property, daily penalties of Continue reading →

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Learning Ladder Safety Could Save You From A Painful Injury

Today’s post comes to us from my colleague Len Jernigan of North Carolina. 

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. Continue reading →

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Workplace Stress Can Make You Physically Ill

Today’s post comes to us from Jon Rehm from Nebraska. While Jon’s post mentions Nebraska law, you should contact our office if you have any questions regarding a claim you might have under New York law.

Serious disabling medical conditions can arise from workplace stress. A recent study showed that people working long hours (11+) are more than twice as likely to experience major depression than those who work only 7-8 hours a day. Another study discovered that stressed workers have a 67% greater risk of heart disease. And other studies mention that “long working hours” lead to more risks of anxiety and a reduced ability to both think and sleep well.

Marianna Virtanen, one of the newest study’s authors, recently gave some tips to workers on ABCNews.com. One of her tips is to: “Make a distinction between work and leisure; don’t skip your holidays; take care of your health and well-being, especially sleep and exercise.” With Americans now working more hours than many of their counterparts in other countries, workers need to be proactive in taking caring of themselves.

But it isn’t just up to the workers. Psychological illnesses and depression cost companies money and result in less worker productivity, according to the CDC’s National Institute for Occupational Safety and Health. Without buy-in from employers and workers, the personal and corporate costs from psychological illness will never be reduced.

Unfortunately, Nebraska law Continue reading →

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New Joint Venture Brings Depth And Diversity

Pasternack Tilker Ziegler Walsh Stanton & Romano LLP (PT), one of New York’s largest workers’ injury firms specializing in serious personal injury cases, workers compensation claims, occupational disease claims and social security claims, has joined forces with Napoli Bern Ripka Shkolnik LLP (NBRS), a nationally recognized plaintiff’s law firm. The venture will provide PT additional depth of expertise in NBRS’s areas of specialty, including asbestos-related illnesses, securities fraud, environmental contamination, defective prescription drugs and medical devices and mass torts. The joint venture will operate under the name Pasternack Tilker Napoli Bern, LLP (“PTNB”).

“Our combined team of over 80 lawyers has the expertise to help working people resolve almost any civil claim they might have, with top quality representation for all of these kinds of cases all under one roof,” said Victor Pasternack, PT Managing Partner.

The firm’s principal office is located in New York’s iconic Empire State Building with additional offices throughout the New York Metro Area, including Brooklyn and the Bronx along with affiliate offices in New Jersey, Pennsylvania, Florida, Illinois and California.

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New Social Security Disability Rules Make Presenting Your Case Tougher

Today’s post comes to us from our colleague Ryan Benharris of Fall River, Massachusetts.

 

In December, 2010, the Social Security Administration (SSA) implemented a set of rules put in place to enable more effective case review. One of the major changes was that Applicants will no longer know who their Administrative Law Judge is prior to their scheduled hearing.

A recent article in the Wall Street Journal (WSJ) noted that these judges seem more concerned with the speed of case processing than on whether the applicants actually deserve benefits. The WSJ also indicated that some judges were approving more than 85% of the cases they heard in what was allegedly an effort to have the cases resolved more quickly.

Unfortunately, for applicants, this change in practice has made their cases much harder to litigate. Many Administrative Law Judges have different styles of practice in how their cases are heard. An attorney may present information in a different style depending on the judge.

The importance of an applicant being represented by an attorney before the Social Security Administration has never been clearer. Since there is no way to know who the Administrative Law Judge is prior to the hearing, it is absolutely imperative that every case prepared in accordance to all rules governing how cases are tried before the court. If even the slightest detail is overlooked, it may prevent an applicant from being allowed to present evidence that could win his or her case.

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NIOSH To Review Underreporting of Occupational Injuries and Illnesses by Workers

Today’s post is from our colleague Jon L. Gelman of Wayne, New Jersey.

The National Institute for Occupational Safety and Health (NIOSH), Centers for Disease Control and Prevention (CDC) has proposed a project to review the Underreporting of Occupational Injuries and Illnesses by Workers.

“In 2008, the Congressional Committee on Education and Labor released the report, “Hidden Tragedy: Underreporting of Workplace Injuries and Illnesses,” indicating “that work-related injuries and illnesses in the United States are chronically and even grossly underreported.” Based in part on the report’s results, Congress allocated funds for NIOSH to conduct a follow-up study using NIOSH’s occupational supplement to the National Electronic Injury Surveillance System (NEISS-Work) to estimate underreporting among individuals who seek care at an emergency department (ED) for an occupational illness, injury, or exposure.

“Objectives for this project are to (1) assess the reporting behavior of workers that are injured, ill, or exposed to a harmful substance at work; (2) characterize the chronic aspects of work-related injuries or illnesses; and (3) estimate the prevalence of work-related chronic injuries and illnesses among United States workers treated in EDs. Particular attention will be paid to self-employed workers, workers with work-related illnesses, and workers with chronic health problems.
“Data collection for the telephone interview survey will be done via a questionnaire containing questions about the respondent’s injury, illness, or exposure that sent them to the ED; the characteristics of the job they were working when they were injured, became ill, or were exposed; their experiences reporting their injury, illness, or exposure to the ED and their employer (if applicable); the presence of an underlying chronic condition that was associated with their ED visit; and the nature of any other work-related chronic conditions they have experienced. The questionnaire was designed to take 30 minutes to complete and includes a brief series of questions to screen out individuals who were not seen in the ED for a work-related injury, illness, or exposure; who are younger than age 20 or older than age 64; who do not speak English or Spanish; or who were working as volunteers or day laborers when the injury, illness, or exposure occurred or was made worse.

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