Boston Personal Injury Lawyer - Workplace 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

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

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