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Injured at Work and the Employer Says it is Your Fault?

Injured at Work and the Employer Says it is Your Fault?

Indiana enacted its first Worker’s Compensation Act in 1915 in response to a growing number of workers injured on the job who had no guaranteed means of receiving medical treatment for injuries or wage replacement income during their physical recovery. Prior to enacting its first Worker’s Compensation Act, when an Indiana worker was injured, the worker was permitted to sue their employer in court in an effort to get compensation. However, lawsuits were time consuming, expensive, and frequently left the injured worker in a position where they were unable to obtain medical attention while their lawsuit was working its way through court because time was lost to address arguments from employers that the worker caused the accident or assumed the risk of the accident. The Workers Compensation Act struck a compromise between the competing interests of the worker and the employer and moved to a no-fault based system. In short, and in general, employers were stripped of the ability to claim the worker caused the accident. In exchange for this concession, injured workers were deprived from collecting pain and suffering or loss of enjoyment of life damages.

In today’s Indiana Worker’s Compensation system, this means when a worker is injured “on the clock” when they slip and fall, or are injured in a car accident, or are injured in a construction accident, the worker’s employer is not permitted to claim the worker should have paid more attention to what they were doing when the event occurred. However, some important employer-based fault arguments are still available to employers. For example, pursuant to I.C. 22-3-2-8, employers may raise affirmative defenses that no money is owed because the injury was 1) due to the employee’s knowingly self-inflicted injury, 2) due to intoxication, 3) due to the commission of an offense (not including traffic violations), 4) due to a knowing failure to use a safety appliance, 5) due to a knowing failure to obey a reasonable written or printed safety rule which has been posted in a conspicuous position in the place of work, or 6) due to a knowing failure to perform any statutory duty.

Disagreements often occur when an employer raises one of these defenses, and if left unresolved, a judge is asked to determine whether the employer’s defense is valid at a hearing. Like many areas in law, an exploration into the facts of an individual matter is usually necessary to assess the validity of these types of defenses. For example, just because a worker is intoxicated or impaired at the moment the worker is injured, it does not necessarily mean the employer does not owe compensation. Indeed, there is a difference between a drunk worker being injured when the worker drives a delivery truck off the road compared to a drunk worker performing his work satisfactorily when a co-worker accidentally drops an item from above that strikes and injures the worker.

Similarly, not every failure to use a safety appliance or knowing failure to obey a posted and written safety rule bars a recovery. When an employer allows the alleged prohibited conduct to occur or also engages in the prohibited conduct, the employer will not be able to shield itself from responsibility. As an illustration in an industrial or machine setting, if an employer posts an open and obvious sign that machinery must be shut down before it is cleaned, but observes employees cleaning the machine while it is not shut down, the employer will not be allowed to rely on a fault-type defense.

If you need help navigating a matter involving an injury at work where questions exist as to whether the employer may raise an argument that the worker is at fault for the accident, Goodin Abernathy, LLP can bring experience, knowledge, and resources to bear on the question. Contact us today for a free consultation.

Emel Doner’s Personal Injury Case

I was severely injured, while walking on a sidewalk, by a reckless driver. The accident happened out of town, in a major city on the west coast, while we were on vacation. I had broken bones, possible spine injury and severe lacerations. After being treated at a trauma center of a major hospital, I was forced to return home with tremendous amount of pain and discomfort, while cancelling the rest of our vacation which took years of planning. I had to undergo months of treatment and was left with a lot pain and suffered from depression. Meanwhile the medical bills started coming in, and I was in no condition to deal with the out-of-state healthcare providers and out-of-state accident insurance issues.

It was at this point that I contacted Christopher (Chip) Clark at Goodin Abernathy for his legal help and guidance. Right from the beginning, he had been very gracious, sympathetic to my situation and highly professional in his dealings with me and my husband. Chip and his staff worked diligently with the out-of-state and in-state healthcare providers, the responsible party’s insurance company and Medicare to gather and disseminate all pertinent documentation. Within a short period of time, Chip was able to negotiate a settlement with the responsible party’s insurance company. The settlement amount was the maximum possible that we could have received.

I thank Chip for his responsiveness, his competence and the extremely professional manner with which he dealt with me and my husband.

Emel Doner

Work Injury Claims Against Employer and Third Parties In Indiana

Work Injury Claims Against Employer and Third Parties In Indiana

An injured worker potentially has two legal claims to recover damages. First, they have an Indiana Worker’s Compensation claim against their employer. Second, they may be able to collect from a responsible third-party.

Each state has its own work injury laws. Indiana’s system starts with making a claim through a government agency – the Worker’s Compensation Board. This agency operates very similar to a court. Papers are filed, attorneys are used and hearing members make decisions like judges. This link takes you to the main page for the Indiana Worker’s Compensation Board website. https://www.in.gov/wcb/ Go to the bottom of the page and look for a translation button. You can change it from English to Spanish, if necessary.

Another easy way to learn about Indiana’s worker’s compensation laws is to watch my YouTube videos. Search for Legalmente Hablando Indy or Goodin Abernathy LLP on the YouTube website. Here is an introduction video Jim Browne recorded that covers worker’s compensation. https://www.youtube.com/watch?v=uHV1TB21TZ4  You will learn that work injury claims allow employees to claim these benefits: medical costs, lost wages and a permanent partial impairment rating. The medical costs include charges for an ambulance, hospital, doctors, nurses, physical therapy, medicine, x-rays or MRI’s.

If a treating doctor orders an employee not to work for medical reasons related to the injury, the employer must pay for lost wages or salary. This is called Total Temporary Disability (“TTD”). The worker is paid 66.66% of her regular pay. But tax is not applied to the money. So if the worker usually earns $100.00 per week, then the employer owes $66.66 for each week the employee is unable to work.
Finally, if the injury is serious, the worker may claim a Permanent Partial Impairment. This idea is to compensate workers for physical and work problems they will suffer in the future. The State of Indiana created a list of dollar values for these injuries that limit a worker’s recovery. I can usually help improve the financial recovery for my clients.

Indiana requires employers to carry worker’s compensation insurance. If a worker is injured on the job, the employer’s insurance will cover these costs. If the employer does not have insurance, the law allows the injured worker to make claims against the contractor who hired the employer for the job. Frequently I help clients step up the ladder and find insurance to collect from.

If a person or company, other than the employer or a co-worker, causes a worker injury, then we can make a “third-party” claim for negligence. Negligence law is different from the worker’s compensation claim. Those cases are opened in a typical court with judges. A big difference between the two cases involves damages for pain and suffering. An injured worker can claim damage for pain and suffering in a negligence claim – but not in an Indiana Worker’s Compensation claim.

We are experienced handling various types of third-party negligence claims. Sometimes they are against construction companies where the general contractor has a legal, contractual duty to provide safety for workers on the job. We have handled claims where workers for other companies cause an accident. For instance, an electrician was on a scissor lift. A plumber drove a fork lift over the lift’s electric cord, pulled the it over and caused our client to fall 20 feet. Or, we have clients who were driving a vehicle for their job when another car caused them a wreck.

Remember, insurance companies are in business to make money- not pay it out. They are professional and know the law. That is why you should call me for legal advice. I give free consultations to review these cases with clients. I explain the law for your specific evidence and describe how I charge for my service. You will meet with me in person, speak Spanish and review the case. My staff speaks Spanish and knows about these cases Don’t wait – contact us now!

I Was Injured In A Car Accident. Should I Hire An Attorney?

I Was Injured In A Car Accident. Should I Hire An Attorney?

Victims of car accidents suffer a significant amount of trauma. Aside from the physical and mental impact left by the crash, they are responsible for dealing with the intricate motions of a post-accident insurance claim.

Given the complexity of this procedure, car accident victims tend to be at a loss regarding the best way to go about filing their claim. Many make the mistake of giving their insurance companies their full trust in fighting for their legal rights. Unfortunately, in cases like these, insurance companies place their own interests above the victim’s.

For that reason, if you’ve sustained personal injury from a car accident in Indiana, working with a skilled attorney is your best bet in getting the compensation you’re entitled to receive.

Statistics on Vehicle Collisions in Indiana

The number of annual car accidents in Indiana is staggering. The Indiana University Public Policy Institute reports a total of 219,112 collisions in 2017. These incidents lead to 911 deaths and 50,042 injuries.

The majority of these collisions were caused by impaired driving, distracted driving, aggressive driving and speeding. With such high odds of getting into a car accident, you owe it to yourself to be well-prepared should the worst-case scenario arise.

How Can an Indiana Personal Injury Attorney Help?

Following the shock of an accident — especially one that has left you with injuries — you need all the help you can get. By working with the right attorney, you’ll have an ally on your team who will help you defend your right to treatment and compensation.

It’s important to note that your insurance company is not your ally in this case. It’s in their best interests to relay the bare minimum payment in order to cover what they’ve determined to be your losses.

During their investigation following the collision, insurance companies will work to reduce their financial responsibilities as much as possible. Their motives are understandable, since their goals ultimately orient toward making a profit. However, this leaves car accident victims in a vulnerable position — especially if they don’t have anyone to represent them.

When to Contact Your Personal Injury Attorney

It’s important to initiate discussions with your attorney as soon as possible following the incident. In all cases, it’s best to do so before contacting your insurance company, as this will ensure your protection during the initial stages of the investigation.

Insurance companies will prey on any potential for negligence that they find in their investigation. They know that a victim is in an emotionally fragile state immediately following the incident. They also understand that your attention will mostly be spent on recovery and loss prevention.

If you lack the counsel of an attorney, it’s likely that you’ll be unfamiliar with your legal rights under formal recourse. Representing yourself in this case will only increase the risk of having your losses undervalued in court.

On the other hand, having a personal injury attorney as a partner throughout this struggle gives you access to their knowledge and experience. You’ll benefit from their network of physicians and personal loss experts. These sources will help your team arrive at the legitimate value of losses that you’ve sustained.

Personal injury attorneys know the process inside and out, and they work to help you receive what you’re entitled to.

Understanding Your Legal Rights

If you’ve sustained a personal injury from a car accident, the compensation you deserve might extend beyond medical coverage.

Depending on the severity of the incident, you might be entitled to the full recovery of lost wages caused by your injury. You’ll also be able to claim physical and emotional distress as part of your case. If family members are made to suffer by the lack of your companionship during recovery, they might also be deserving of compensation.

In cases where the insurance company seeks to settle out of court, it’s important that you operate with a full understanding of the value that you’re entitled to. In this case, your personal injury attorney will be able to assess the offer and negotiate on your behalf.

Working With a Personal Injury Attorney is Your Safest Bet

It’s possible to represent yourself in a case where you’ve sustained a personal injury from a car accident. However, unless you’re operating with a full understanding of Indiana car accident law — which requires years of study and experience — you risk missing out on significant compensation that you might be entitled to.

That’s why it’s best to hire a personal injury attorney. By doing so, you’ll benefit from their vast knowledge and expertise in navigating through the intricacies of your case.

Working together with an attorney will greatly increase your chance of being compensated for the full extent of your losses.

Should I Allow Vaping In My Rental Units?

Should I Allow Vaping In My Rental Units?

Most landlords and owners do not allow smoking in their rental units – and for good reason: the smell remains in the house long after the tenants move out; the tar and smoke buildup on walls, carpets, and ceiling; and it increases the risk of accidental fire to your rental home.

 

But what about vaping and e-cigarettes? Should you allow their use in your rental? Recent polls indicate 10% of U.S. adults and 15% of U.S. adults under the age of 40 use e-cigarettes. This equates to millions of users throughout the country, so allowing the use of e-cigarettes might spark more interest in your rental properties from that growing population.

Risks of Vaping and E-Cigarettes to Your Rentals

Before you sign up those vaping tenants, you should be aware of the risks of vaping and e-cigarettes to your rentals.

http://time.com/3915957/e-cigarettes-vaping-health-tobacco-addiction/ (hyperlink 10% of U.S. adults with this).

That Chain-Smoker Perfume

Just like traditional cigarettes, cigars, and pipes, e-cigarettes do produce emissions that leave behind a residue that can build up on walls, ceilings, and in vents over time. The vapors from e-cigarettes are significantly cleaner than those from traditional cigarettes, but it will still leave an oily residue with repeated and long-term use. While the stench and deep staining of nicotine are not as prevalent with e-cigarettes, it is likely there will be extra cleaning costs upon your vaping tenant’s move-out.

Fire Hazards

While e-cigarettes have a significantly smaller chance of burning down your unit than falling asleep on the couch with a lit cigarette, the danger is still real. In July 2017, FEMA issued a report that 195 separate incidents of explosion and fire were reported involving e-cigarettes in the preceding 8 years. Many of these explosions occurred when the e-cigarette was being charged. Often this charging is done when tenants are asleep and not in a position to realize the danger before significant damage is done to your unit.

https://www.usfa.fema.gov/downloads/pdf/publications/electronic_cigarettes.pdf (hyperlink FEMA with this).

What to Do?

Ultimately it will be up to each landlord to allow or exclude the use of e-cigarettes in its properties. However, whatever you decide, you need to be sure your lease is updated to address e-cigarettes and vaping, and to ensure your tenants are aware of the rules regarding vaping and smoking before you rent to them.