Rockford & Moline Personal Injury Lawyers - Medical

Something to Chew Over: Are You “On-the-Job” During Your Lunch Break?

Nick Avgerinos — Mon, 21 Jul 2008 11:41:00 GMT

Workers’ compensation is probably something you don’t know a whole lot about, until you or a close friend suffers an on-the-job injury. Then it comes at you all too quickly.

What’s the difference between workers’ compensation and personal injury ? (If the word ‘tort’ makes you think of a tasty pastry, it’s worth your while to click around on that site.) For you, it might be a big difference in terms of the number of zeros in your award.

In Iowa , for example, workers’ compensation claims have scheduled injuries. In other words, forget everything you’ve ever been told about not being able to put a price on your life and health. Simply put, in most instances, your mangled hand is worth a specific dollar amount. Same goes for a leg, a foot, an ear, etc. The doctors provide impairment ratings which are then used to determine the value of one’s permanent condition or, the ratings set the boundaries for the value of the case. The who, what, where, when, and why is irrelevant so long as you injured a specific body part on-the-job. (Assuming no other concurrent or pre-existing injuries or conditions, the chess player and the soccer player may well end up receiving the same amount for loss of use of a foot.) However, for injuries affecting the whole body , such as back, neck, internal, neurological, and mental health to name just a few, the limitations of the scheduled injury analysis I have discussed do not apply, as these injuries are not classified as scheduled. Confused yet?

In Illinois , workers’ compensation injuries are not scheduled as they are in Iowa . In establishing case value, Illinois does not apply the American Medical Association Guides to the Evaluation of Permanent Impairment , including the 5^th or 6^th Editions. The Illinois system is based on precedent ; that is, compensation for permanent disability is based upon what the Illinois Workers’ Compensation Commission has awarded in the past for similarly situated individuals.

With personal injury claims, on the other hand, specifics are very important. Were you in any way at fault? How much were your medical bills? Can you continue to work? How does the injury affect your personal life? You’re the victim and yet you’re left to prove that you deserve compensation. Doesn’t seem fair, but it’s the way the system works. The best thing you can do is be upfront and honest. It’s up to you to report your injury early and seek legal advice regarding how to proceed.

You’d think that determining what constitutes a workers’ compensation claim would be pretty straightforward. Well, you’d think wrong . The injury must arise out of and in the course of employment . Sounds redundant, doesn’t it? But often Employers escape liability by saying that an employee was technically “on-the-job,” but sustained an injury as a result of behavior not related to the job. In other words, injuries are often deemed to be sustained out of---but not in the course of---employment.

So, what about lunch breaks? As with most questions, the legal answer is “it depends.” A recent New York workers’ compensation case provides an interesting example. Like Illinois , New York Workers’ Compensation law requires that the injury arise both out of and in the course of employment. In this case, a cab driver was parked in a parking lot, eating his lunch, when approached by another motorist for assistance in jumping his car. The cab driver graciously agreed, but the battery exploded as he was securing the jumper cables, resulting in the cab driver losing his left eye. He filed for workers’ compensation….but he was on his lunch break when the injury occurred.

The case ended up in the New York Court of Appeals , which agreed with the employer that meal breaks are generally not compensable. They ruled, however, that this case was an exception. Testimony showed that drivers routinely took 15-20 minute breaks with the express permission of the employer at a location convenient for the employer. Reasoning that the general rule doesn't apply when the nature of the job dictates the time and place of the meal and the employee is still “on-the-job” at the time the break occurs. Thus, the court determined that the cab driver was injured in the course of employment.

But did his injury really arise out of employment? The New York Court of Appeals determined that if an employee is injured while involved in an activity that benefits the employer, while in the course of employment, then that employee has a workers’ compensation claim. But the cab driver here was just being a Good Samaritan , right? Wrong. The court ruled that, because the cab was clearly marked with the employer's name, the assistance created a good-will benefit to the employer. In other words, the cab driver was providing free advertisement for the employer.

As you can see, the world of workers’ compensation can be very confusing, but a good attorney can help you navigate through the details. Hopefully, you never have to deal with an on-the-job injury; but this should give you some helpful information to digest on your own lunch break today, just in case.

Originally posted at InjuryBoard by Nick Avgerinos

Worker Safety Incentive Programs: Worker vs. Co-Worker?

Nick Avgerinos — Wed, 07 May 2008 14:23:51 GMT

Promoting workplace safety is as non-controversial as promoting firearm safety, safe-driving, and energy efficiency. However, when the advancement of workplace safety pits worker against worker then controversy begins.

Encouraging labor and management to work together to reduce on-the-job injuries is a good and noble policy. Who among us wants to see an injury occur at work, particularly one that would easily have been avoided if an adequate safety program had been in place, or if the worker had followed directions? Over the years many employers have taken steps to improve workplace safety by consistently explaining and describing how jobs are to be performed, holding mandatory safety meetings and so on. Labor, and labor unions have taken action to reduce workplace injuries by forming safety committees (oftentimes with management), holding workshops for stewards, and the membership, all with the intention keeping the workplace safe.

Reducing workplace injuries produces many favorable consequences, including:

-no lost time from work

-no loss in productivity,

-no loss or reduction in household income

-no disruption to the household

-no medical costs

-reduced workers’ compensation costs

-less potential for labor-management conflict over availability and suitability of restricted work

Rewarding workers for exercising proper safety techniques, attending safety meetings or offering recommendations for improving safety practices all sounds good, right? But, here’s where worker safety incentive programs can become a problem. In these programs, the employer rewards its employees for the company having gone so many days, weeks or months without a workplace injury, or without any lost time days. The rewards may take the form of monetary compensation, awards or recognition for having reached a predetermined goal as established by the employer.

What’s the downside you ask? While workers may be encouraged to report all injuries, the reporting of an injury, regardless of how minor can cause a break in the run of consecutive injury-free days from work and, perhaps more importantly for some, no reward ($$) from the employer. By following the rules and reporting all injuries, a worker risks incurring the anger of co-workers who have been informed by their employer that they will not receive a prize. Here’s the dilemma: Report the injury and lose the reward, or don’t report the injury and risk potentially serious consequences by way of a reprimand, suspension or something worse for having failed to follow company policy. The situation becomes much more problematic down the road, if what seemed like a minor back strain that the worker chose not to report out of fear of turning the co-workers against him is later diagnosed by a doctor as a herniated disc for which surgery is needed. Now the worker has a huge problem because the workers’ compensation claim resulting from the workplace accident will likely be denied by the employer and workers’ compensation insurance company because there is no record of the worker having reported the accident to the plant nurse, supervisor, or anyone else in a managerial capacity.

What now is the worker to do if he has been taken off work by his doctor for an accident and condition that the employer has denied is work-related but prevents him from working and generating income, and which requires an operation? The problem is greatly magnified if the injured worker lacks health insurance, lacks short or long-term disability benefits, or lacks a second household income with which to pay for medical care, groceries and rent.

Worker safety programs are intended to bring workers together by providing them with a reward for having an injury free workplace. Programs that implicitly encourage the under reporting of injuries are wrong. It is simply unfair to place an employee in the position of having to forego a bonus because his friend and co-worker has suffered an injury on the job. Instead of uniting workers, the safety incentive programs may well have the unintended consequence of dividing them.

Originally posted at InjuryBoard by Nick Avgerinos