Omaha Personal Injury Lawyer - Workplace Injuries

Welder Recovers in Ohio for Manganese Exposure

John Inserra — Mon, 10 Dec 2007 08:35:38 GMT

It is reported in the Cincinnati Post that

A federal jury awarded $17.5 million to a welder who sued five companies on claims that he got sick from inhaled fumes, marking the second time in 18 such cases that a verdict has come down on the side of workers.

The jury in Cleveland found that the five companies showed negligence by not warning the plaintiff of the toxicity of manganese in their products.

For more information on this subject, please refer to the section on Worksite Injuries and Workers Compensation.

Originally posted at InjuryBoard by John Inserra

Retaliation in Worker's Compensation

John Inserra — Mon, 09 Jul 2007 12:48:55 GMT

The case of Trosper v Bag N Save sets forth the Nebraska Supreme Court's acceptance of a cause of action for the retaliatory demotion for the filing of a Worker's Compensation claim.

[7] Focusing on our rationale in Jackson, we conclude that
a cause of action for retaliatory demotion exists when an employer
demotes an employee for filing a workers' compensation
claim. When we recognized a retaliatory discharge claim, we
reasoned that "a rule which allows fear of retaliation for the
filing of a claim undermines [the important public policy of the
Nebraska Workers' Compensation Act]."34 And we stated that
"'the employee must be able to exercise his right in an unfettered
fashion without being subject to reprisal.'"3

Trosper extends the public policy rationale set forth in Jackson v. Morris Communications Corp., 265 Neb. 423, 657 N.W.2d 634 (2003).

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

Originally posted at InjuryBoard by John Inserra

Do I have to Move?

John Inserra — Tue, 22 Aug 2006 09:07:10 GMT

The recent case of Olson v Capital Electric handed down by the Nebraska Court of Appeals as an unpublished opinion says no you don't have to move. Olson an injured electician refused to move to Kansas City to work for Capial Electric while he was released from his doctor with light duty restrictions which could not be accomodated on his regular job with Capital in Omaha Nebraska. Capital Electric took a position which this court rejected as not supported by the Nebraska Worker Compensation statute or Nebraska case law. The issue of moving appears to be fact driven, but in this case, the court found that Olson was still temporarily totally disabled.

Originally posted at InjuryBoard by John Inserra

Retaliatory Discharge

John Inserra — Fri, 21 Jul 2006 11:20:55 GMT

The case of Riesen v Irwin Industrial sets out Nebraska's analysis for a retaliatory discharge for the filing of a worker's compensation claim in an "employee at will" state.

The following procedure is utilized under the three-tiered allocation of proof standard: First, the plaintiff has the burden of proving a prima facie case of discrimination. See Goerke, supra. Second, if the plaintiff succeeds in proving that prima facie case, the burden shifts to the defendant-employer to articulate some legitimate, nondiscriminatory reason for the plaintiff's rejection or discharge from employment. See id. This burden is a burden of production, not of persuasion. See Lincoln County Sheriff's Office v. Horne, 228 Neb. 473, 423 N.W.2d 412 (1988). The employer need only explain what has been done or produce evidence of a legitimate, nondiscriminatory reason for the decision. Id. It is sufficient if the employer's evidence raises a genuine issue of fact as to whether it discriminated against the employee. Id. "'"If the defendant carries this burden of production, the presumption raised by the prima facie case is rebutted" . . . and "drops from the case . . . ."'" (Citation omitted.) Agnew, 256 Neb. at 402, 590 N.W.2d at 694, quoting St. Mary's Honor Center, supra.
Third, assuming the employer establishes an articulated nondiscriminatory reason for disparate treatment of an employee, the employee maintains the burden of proving that the stated reason was pretextual and not the true reason for the employer's decision; i.e., that the disparate treatment would not have occurred but for the employer's discriminatory reasons. Lincoln County Sheriff's Office, supra.

This case is a very good step by step analysis of the type of proof for a retaliatory discharge. The case essentially adopts the federal discrimination guidelines to proof. This case belongs in a lawyer's "how to do it" book.

Originally posted at InjuryBoard by John Inserra

Vicarious Liability of a Third Party in a Worker Compensation Case

John Inserra — Fri, 21 Jul 2006 11:04:09 GMT

The Nebraska Supreme Court in the case of Didier v Ash Grove Concrete reiterates the rules by which an employer of an independent contractor may be vicariously liable to an injured third party.

As noted above, an employer of an independent contractor is generally not liable for physical harm caused to another by the acts or omissions of the contractor or his servants, but an employer of an independent contractor may be vicariously liable to a third party pursuant to two exceptions, where (1) the employer retains control over the contractor's work or (2) the employer has a nondelegable duty to protect another from harm. See Ray v. Argos Corp., 259 Neb. 799, 612 N.W.2d 246 (2000). As noted above, nondelegable duties include, but are not limited to (1) the duty of an owner in possession and control of premises to provide a safe place for work by a contractor's employee, (2) a duty imposed by statute or rule of law, and (3) the duty of due care imposed on an employer of an independent contractor when the contractor's work involves special risks or dangers, including work that is dangerous in the absence of special precautions. See Parrish v. Omaha Public Power Dist., 242 Neb. 783, 496 N.W.2d 902 (1993).

Originally posted at InjuryBoard by John Inserra

Welding Rods and Parkinson's Disease Verdict in Cleveland

John Inserra — Wed, 28 Jun 2006 15:54:37 GMT

A jury on Tuesday found makers of welding rods were not liable for the health problems of a former civilian worker.
Ernesto G. Solis, 57, claims years of exposure to welding fumes at his job damaged his health because of exposure to manganese within welding rods.

There are thousands more individuals pursuing similair claims. This is an issue in which the scientific evidence is not clear cut, so there maybe a mixed result with further trials. This was the first case and time will tell the viability of the remaining cases.

Originally posted at InjuryBoard by John Inserra

Nebraska Statute short on made whole doctrine

John Inserra — Thu, 22 Jun 2006 10:55:37 GMT

The Nebraska Supreme Court held in a worker's compensation case that distribution of proceeds recoverd from a third party is not subject to the equitable "made whole" doctrine of equitable subrogation.

Now, Â§ 48-118 includes language providing for a fair and equitable distribution. It does not, however, adopt the "made whole" doctrine. Nor does it adopt any other specific rule for determining how to fairly and equitably distribute the settlement. Instead the language is plain: The court "shall order a fair and equitable distribution." Because we apply statutory subrogation, we decline to further read into Â§ 48-118 a requirement that the employee be "made whole." Instead, under the plain language of Â§ 48-118, the trial court shall make a fair and equitable distribution. The distribution is left to the court's discretion.

The case is remanded to the court to make its decision without regard to the "made whole" doctrine. It will be interesting to see if the Judge comes up with any different opinion as to what is "fair and equitable" when a person is not made whole by the third party settlement.

Originally posted at InjuryBoard by John Inserra

Worker's Compensation and Bad Faith

John Inserra — Thu, 08 Jun 2006 08:32:45 GMT

The Supreme Court of Oklahoma allows a claimant to bring a bad faith claim against her employer's Worker's Compensation insurance carrier for failure to pay permanent partial disability benefits. The case is SIZEMORE v. CONTINENTAL CASUALTY COMPANY. The court found that a common law tort of bad faith exists for an insurance carrier's bad faith in refusing to pay a workers' compensation award.

Originally posted at InjuryBoard by John Inserra

Top Ten Tips For Injured Workers

John Inserra — Wed, 24 May 2006 13:53:39 GMT

If you get hurt on the job, your employer maybe required to pay you workers' compensation benefits.
You may be entitled to Medical Care, Temporary total disability benefits,Temporary partial disability benefits,
Permanent partial disability benefits, Vocational rehabilitation benefits, or Death benefits.

The tips below only scratch the surface of possible pitfalls in the workers' compensation system. It is your duty to find out what laws apply and whether your employer/insurance company are providing the proper benefits. Do not expect the insurance company to tell you about your rights. As a matter of fact an adjuster is not allowed to give you legal advice. It is your duty to get that information.

1. REPORT INJURY
Â§ Report you injury right away! Tell your supervisor and ask him/her to fill out a First Report of Alleged Occupational Illness Injury. Many times employers will not make a record of an injury until well after the date of accident. The lack of a record can hurt your claim. If you are getting hassled about filling out a report you should contact an attorney immediately.

2. GATHER INFORMATION
Â§ Write down the names of anyone who witnessed the accident and where the accident happened. Also if the accident involved any possible dangerous or defective product, save the product. You may be able to bring a separate claim against the manufacturer or distributor of that product.

3. CHOOSE YOUR OWN DOCTOR
Â§ In Nebraska there are rules about who chooses the doctor you see. You have the right to select a doctor who you (or an immediate family member) have seen before. If you do not have seen a doctor the employer may get to choose. Frequently an employer will not tell you about this right to choose your own doctor and simply send you to a company doctor. Without proper notice by the employer you may then have the right to select your own physician. If possible you should avoid company doctors and see your own family doctor. An attorney can help you with this process.

4. SEEK MEDICAL TREATMENT IMMEDIATELY
Â§ It is very important that you seek medical treatment as soon as possible for two reasons. First is to get the best medical care available. Sometimes by waiting you will further injure yourself. Second is that you will create a medical record of what happened. If you delay treatment an insurance company can use that against you and even argue that you didn't get hurt at work. The sooner the better.

5. DESCRIBE THE ACCIDENT
Â§ Always tell the doctor how the accident happened. Describe in detail when, where, how. The doctor will write down this information. You need this information recorded to help your claim.

6. REPORT ALL SYMPTOMS
Â§ No matter how minor it may seem, always report ALL symptoms to your doctor. If your neck AND back hurt, tell your doctor about both. The simplest way is to work from your head to your toes and report everything. However this does not mean exaggerate your symptoms. Be matter of fact and know that you are creating a record of your injuries.

7. RECORDED STATEMENTS
Â§ Never give a recorded statement without first talking to an attorney. Prior to taking recorded statements of injured workers, adjusters frequently meet with their attorneys to discuss how to ask questions. By allowing a recorded statement, you may be giving an insurance company ammunition to deny your claim. With you even knowing it. If you already have a recorded statement scheduled - talk to an attorney before you talk.

8. ABOUT CLAIMS ADJUSTERS/ NURSE MANAGERS
Â§ Be careful when you talk to adjusters. They are paid to keep claims down and the only way they can do that is at the expense of you. However you should always be polite when talking to an adjuster and you also have a duty to cooperate.

9. COMPANY DOCTORS
Â§ If you get a call from an adjuster or nurse manager that you need to see another doctor, call an attorney immediately. Seeing a company or defense doctor can seriously affect your claim. Company/defense doctors may disagree with the treatment you are receiving or the physical restrictions recommended by your treating doctor. The insurance company may then even has a reason to deny your claim. Also if your treating physician recommends a referral to a specialist, do not let the employer/insurance company pick the specialist. Talk to an attorney first.

10. TALK TO AN ATTORNEY
Â§ The sooner you talk to an attorney the better. You may not need an attorney to represent you but without first talking to one, you will never know.

Originally posted at InjuryBoard by John Inserra

Workers' Compensation And WTC Clean-up

Staff Writer — Thu, 27 Apr 2006 09:47:01 GMT

Julie Ferguson at Workers' Comp Insider brings my attention to an AP article from PhillyBurbs.com. The article points out that the government does not look highly upon workers' compensation claims arising from the clean-up of the 9-11 tragedy:

of the 485 federal employees to file for workers compensation claiming injuries from the aftermath at ground zero... virtually all of those claims, some 478, were either rejected by the government or abandoned. Of the claims stemming from the day of the attacks, the government approved nearly all 987 of those.

Julie goes on to explain that when workers' compesation does not provide for employees in cases such as this, toxic torts often arise. This is due to that fact that illnesses arising from occupational hazards are harder to prove than an injury that arises from a single event.

Originally posted at InjuryBoard by Staff Writer