Boston Personal Injury Lawyer - Work Injuries

Can I Sue if I Receive Workers Compensation?

Ken Margolin — Fri, 20 Jul 2007 15:30:00 GMT

I have been asked this question many times over the years by clients who have received serious personal injuries at work. Workers compensation pays the injured employee regardless of whether the employer or anyone else was negligent, and even if the employee's own negligence contributed to his injuries. Worker compensation laws are essential, but they are something of a devil's bargain.

The tradeoff for certainty of payment is that the compensation is grossly inadequate in cases of death or disabling injury, and the employer cannot be sued. The personal injury attorney contacted by a person who was badly injured on the job, must look for a viable "third party defendant." The third party defendant is a person or entity, other than the employer or a fellow employee, whose negligence contributed to the injury. For example, a negligent subcontractor in a construction accident case, might be a third party defendant. If the workplace injury was caused by a defective product, the product manufacturer could be a third party defendant. Sometimes, maintenance or security on a work site, is performed by an entity other than the employer. In the appropriate case, they might be third party defendants.

In any tort case in which workers compensation insurance has been paid, the insurer has a lien on the potential recovery, from which it can recoup the money it paid to the injured employee. In Massachusetts, the lien is automatically reduced by a third, the notion being that the plaintiff's attorney's efforts benefited the comp. insurer, which should be responsible for their portions of the attorneys fees. Worker compensation insurers are often willing to reduce their liens further, in order to facilitate a settlement, enabling both the comp. insurer and the injured employee to benefit.

For more information on this subject, please refer to our section on Workplace Injuries and Discrimination.

Originally posted at InjuryBoard by Ken Margolin

Slip, Trip, and Fall Traps

Ken Margolin — Thu, 19 Apr 2007 13:15:00 GMT

Very serious injuries can result from incidents of slipping, tripping, or falling down. A fall can end careers, from such injuries as broken bones, traumatic brain injury, spine injuries, and others. But winning a fall down case in Massachusetts, is quite difficult. A number of legal theories stand in the way of success for even a severely injured plaintiff. If the incident occurred on a municipal way, there is no incentive for an attorney to accept the case, since a Massachusetts statute caps recovery, if the fall was caused by a defect in the public way, at $5,000 - that's right, five thousand dollars.

If an accident occurs on ice or snow, the plaintiff must show that the ice or snow was an "unnatural accumulation." Mere failure to keep a walkway clear, even if the hazard is appreciable by the landowner, will not support a case. If a person slips on a foreign substance in a store, for example, on a banana peel or spill in a supermarket, the injured person must be able to present evidence that the substance was on the floor for a sufficiently long period of time, that the store management should have known of it, and had the opportunity to clean it. That standard is not an impossible task, but can be difficult. And, as I have written before, there is a suspicion in many jurors, that people ought to look where they are going.

Despite the difficulties, slip, trip, and fall cases involving serious injuries, are well worth investigation. Sometimes, a less obvious theory of liability will carry the day. For example, if a defect causing injury, in and of itself, does not seem substantial, the case may yet have merit, if placement of barriers forced individuals near or over the defect. Inadequate lighting may be a fruitful avenue of investigation in a night time fall down case. The more severe the injury, the greater the reason to explore legitimate grounds of liability.

Originally posted at InjuryBoard by Ken Margolin

Dangers from Above

Ken Margolin — Wed, 21 Mar 2007 16:10:00 GMT

I'm not a deer hunter, but I have a few friends who are. They tell me that the reason why hunting deer from a tree stand is so successful, is that deers have no natural enemies who prey on them from trees. Deers don't look up to spot potential dangers. Humans are similarly at risk from objects falling from above them. Some truly catastrophic brain injuries, crushing injuries, and deaths, have been caused by falling objects. The big box stores which I've written about on this site before, are too-frequent culprits. So too are careless construction companies whose foremen fail to insure that objects at height are secured and that pedestrians are steered well clear of high-level work done on buildings fronted by public sidewalks. Workers are also at risk from objects that fall on them because not properly secured or behind barriers, or that are lifted improperly or with the wrong equipment. OSHA, the federal Occupational Safety & Health Administration, gives four chilling examples of falling object injuries to workers; three of the incidents resulted in fatalities. Since people are not wired to routinely scan the skies for hazards, the obligation of those working above ground level, to follow safe practices, is in every way, a high one.

Originally posted at InjuryBoard by Ken Margolin

Working Teens at Risk

Ken Margolin — Wed, 07 Mar 2007 07:00:00 GMT

A disturbing article in Yahoo News the other day, described a serious problem with high school aged youths put in dangerous work situations. According to the piece, many teens between the ages of 14 and 18, were assigned to work with dangerous tools, with inadequate training, allowed to work excessive hours, or permitted to work with no adult supervision. Many of the violations noted were in violation of federal regulations. Of particular concern was a practice I have witnessed personally in many small shops or eateries - that of having young people, girls more than boys, working alone in jobs involving handling cash, thus exposing them to the risk of robbery. Adequate training and adult supervision would seem to be a minimum amount of care owed to working teenagers.

Originally posted at InjuryBoard by Ken Margolin

Workplace Assaults

Ken Margolin — Sat, 03 Mar 2007 10:00:00 GMT

The National Institute for Occupational Safety and Health (NIOSH) reports that an average of 1.7 million people annually were the victims of non-lethal workplace assaults during the period 1993-1999. Leading the way for types of employment carrying the greatest risk of assault, were nursing homes and hospitals. Retail operations, such as grocery stores, also carried a surprisingly high risk compared with other types of occupations.

Preventing violent attacks on workers, to the extent possible, is an obligation for all employers. NIOSH suggests some common-sense and simple measures to improve workplace safety, such as: ensuring that all workplace areas are well-lit; creating barriers such as high counters or bullet-proof windows for employees who must keep significant amounts of cash within their control; keeping more people on staff; decreasing the use of cash in favor of electronic transactions. While most specific crimes are not foreseeable, the possibility of crime may well be foreseeable. Workplaces in a bad neighborhood, dim lighting in a parking lot or garage, female employees working alone late at night, are just a few examples of types of situations that should alert the employer to the obligation to act affirmatively to protect employees.

Instructing workers never to resist a demand for money or goods is no panacea, but can keep employees safer if they are on duty when a crime is committed. Increased security in post "9/11" America has been attributed to a modest reduction in workplace assaults during the last several years. Overall security in many cities and larger office buildings is tighter. For the lone gas station or convenience store attendant, however, or the nursing home employee supervising too many residents with too few colleagues, "9/11" types of security enhancements make no difference. They must rely on their employer's diligence in helping to keep them safe.

Originally posted at InjuryBoard by Ken Margolin

Falling Down Stairs

Ken Margolin — Thu, 15 Feb 2007 07:00:00 GMT

Falling down a flight of stairs or even a few steps can cause serious injuries. Broken bones, head injury, and other trauma can result. In determining whether a stair injury case should result in a lawsuit, a number of factors need to be determined in addition to the severity of the injury. Stair injury cases are a form of premises liability litigation. Stair design is one factor to be analyzed. Knowledge of what makes stairs safe and unsafe has been circulated generally in the construction industry for many years. Age of the stairs is relevant. The owner of an older building with stairs narrower than would be designed today, for example, may not be liable for the excessively narrow stairs. There is no obligation known in the law to replace stairs, even if they would be considered unsafe if built today.

Other factors, though, are within the owner's control even in older buildings. If wear has made the surface of steps slick, treads may be required. If there is an odd curve increasing the likelihood that a walker may step off the edge suddenly or have difficulty visualizing the next step, a warning sign or strip may be necessary. Railings can reduce the risk of injuries on stairs and their absence may be negligent in some cases. Poor lighting is a common cause of falls on staircases. Many a condominium association or apartment building owner has assumed that they were free from liability from staircase falls on their premises because their stairs complied with the building code.

Compliance with building codes is important but does not necessarily mean that a stairway is not negligently designed or maintained. Building codes are minimum standards. While failure to comply with the building code is evidence in Massachusetts, of negligence, compliance does not necessarily equal due care. Any case of a fall on stairs resulting in serious injury must be assessed individually to determine whether the stairs were safe for their reasonably intended use and at all times when their use was forseeable.

Originally posted at InjuryBoard by Ken Margolin

Railroad Worker Injury Cases

Ken Margolin — Fri, 09 Feb 2007 15:45:00 GMT

A colleague called me recently with questions about the rights of a railroad employee who suffers injury or death as the result of railroad negligence. The answer lies in a special statute, known as the Federal Employers Liability Act ("FELA"). FELA covers all claims resulting from the injuries or deaths of railroad workers in the course of their employment if the railroad was engaged in interstate commerce, which, is a practical matter, is pretty much all such incidents. FEMA is an exclusive remedy and supersedes state tort law. In many ways, FELA is preferable to the workers compensation laws that cover on-the-job injuries and deaths for workers in most occupations. Under workers compensation laws, there is recovery regardless of the employer's negligence. The trade off, though, for that certainty of economic benefit, is that the amounts of moneys paid are modest, not nearly sufficient to cover the loss resulting from a disabling injury, or death.

Under FELA, the plaintiff must show that the railroad or another railroad employee was negligent. Once negligence is shown, the standard for "causation," proving that the negligence contributed to the injury or death, is much lower than in a normal tort case. In a FELA case, as long as the employer's negligence was related in any way, no matter how small, to the workers injury, then the case may proceed. The standard is known as the "featherweight" causation standard. The railroad may attempt to show that the employee's own negligence contributed to his injuries. If successful, the amount of any award will be reduced by the percentage of the employee's own negligence, a principal known as "comparative negligence."

If the employee prevails in a non-fatal injury case, he can recover for his past and future loss of wages, the cost of past and future medical treatment, and past and future pain, suffering, and mental anguish. Proving substantial damages in a railroad death case, may be more complicated, especially if the deceased worker leaves no spouse or minor children. The estate of the worker can bring a claim for the benefit of the worker's beneficiaries. The beneficiaries are entitled to receive an amount equal to the "contributions" the decedent would have been expected to give to the beneficiaries. Given three different workers all of the same age and earnings, the amount of expected contributions to the beneficiaries might vary widely depending on the family circumstances. If the decedent left a wife and three children, ages 3 - 8, it is easy to see that a substantial portion of the decedent's net earnings would have gone to his children through their minority and his wife throughout his life. If, on the other hand, the fatally injured worker left no spouse and 3 adult children, the plaintiff's attorney would have to present evidence that the adult children had an expectation of substantial contribution from the decedent. If one or more of the adult children were seriously disabled, it might be reasonable for a jury to conclude that the decedent would have contributed to that child for the child's entire life.

While involving a special statute, FELA cases are not dissimilar from any other serious personal injury or wrongful death actions. They require on the part of the plaintiff's attorney, knowledge of the law, attention to detail, employment of experts, and sound tactical instincts in the preparation, and trial or settlement stages of the case.

Originally posted at InjuryBoard by Ken Margolin

Big Box Store Head Injury Hazard Continues

Ken Margolin — Mon, 05 Feb 2007 12:15:00 GMT

One of the earliest blogs I wrote on InjuryBoard, entitled "Shop till you're Dropped," pointed out the hazards in big box hardware and home goods stores, from falling overhead objects. Here is a news flash - based on my one store survey this past weekend, nothing has changed. I went to this cavernous home supplies store - you would all recognized its name - to purchase some rug pads. As I wandered the long, narrow isles, I recalled the fate of my brain-injured client, harmed by a falling shop vac, and looked up.

What I saw was chaotic and incredibly dangerous. Boxes of lethally heavy items and large unboxed merchandise sat on the top shelves, 12 feet above ground, unsecured and with no barriers between them and the open air. Some items stuck out precariously beyond the edge so that if they were jostled by an employee stocking or unstocking the shelf (as happened to my client in the case I previously wrote about), they would crash onto the head of any unsuspecting customer below.

While customer service is the catchword for some chains, this store's mantra appeared to be customer beware. As I turned one corner, a long pole with a razor sharp edge jutted out at abdomen height from a cart, while the employee who was moving it chatted unconcerned with another employee wandering down the isle. I watched a woman trip over a small box that lay haphazardly on the ground - she recovered harmlessly. The biggest danger by far, though, were the unprotected sky high items - brain injury waiting to happen. The risks posed by this sloppy big box store practice stems from the most cynical form of cost-benefit analysis. The big box stores know full well of the dangers posed by unsecured, heavy, top shelf merchandise. Fixing the problem in every isle in every store, though, takes time and money. Apparently a decision has been made somewhere at the corporate level, that paying for liability insurance is more cost effective than fixing the problem. If that memorandum exists, I hope that it is discovered one day in head injury litigation.

Originally posted at InjuryBoard by Ken Margolin

Failure to Warn

Ken Margolin — Mon, 29 Jan 2007 14:15:00 GMT

Tools and machines, simple and complex, carry risks. Manufacturers have an obligation to design their products to eliminate the most obvious risks, for example, placing effective hand guards on power tools. Obviously, though, the ways in which tools and machines may be used are many. Mechanical design safety measures have some practical limits, not the least of which is financial.

One the simplest and most economical ways that manufacturers can prevent many injuries, is by placing adequate warnings on their products. Warnings remind the user of the product to be cautious and to avoid behaviors known by the manufacturer to be dangerous. Take a cherry picker, for example. The manufacturer knows that it will frequently be used at the level of power lines. It is not hard to imagine an obligation that a warning appear in some strategic spot on the machine, telling the user to avoid contact with power lines. In order to be effective, a warning must be designed to prevent or change behavior. To that end, it must be placed where it is likely to be read, must be large enough and/or obvious enough that is easily seen, and it must be easy to understand. Some research suggests that the use of pictures as well as words carries the highest likelihood of success.

Juries are most open to failure to warn theories when the potential danger would not necessarily be obvious to the user and where the product user was not excessively negligent themselves. A failure to warn allegation in the case of a dangerous product can be especially powerful when the manufacturer was aware of multiple injuries do to certain types of uses or conduct with its product, and simply failed to add a warning to minimize future harm.

Originally posted at InjuryBoard by Ken Margolin

Blame it on the Trial Lawyers

Ken Margolin — Fri, 26 Jan 2007 11:15:00 GMT

I was thinking the other day about the gripes of the anti-justice forces who would reserve the courts for corporations and the wealthy and who enhance political careers by bashing trial lawyers. If they long for an America of 100 years ago, they have a good reason for their animosity. Want your segregated schools back? Sorry. Brown v. Board of Education took care of that, using trial lawyer tricks to convince the court that "separate but equal" was a big lie. Push people with retardation back into hell hole institutions? Too late. A series of trial lawyer-orchestrated federal court cases lay the foundation for the Fair Housing and Americans with Disabilities Acts and other laws protecting the dignity of vulnerable citizens. Missing those old Ford Pinto exploding gas tanks? They won't be replicated in any other cars, thanks to some bruising verdicts against Ford courtesy of trial lawyers. Your states won't be able to give back those billions in tobacco settlements that trial lawyers gained either. Sorry, but smoking-related deaths are on a downward slide for good. I don't have to tell you who was at fault. The list of old time pleasures that are now in retreat courtesy of trial lawyers, sexual abuse, medication errors, nursing home neglect, construction deaths, to name just a few, is far too long for this short piece. Shackle those lawyers and we may just get back to the good old days

Originally posted at InjuryBoard by Ken Margolin