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.
The economic impact on small businesses due to COVID-19 is undeniable. Further, the uncertainty surrounding the length of the shut-down and the availability of funds for relief loans has left many business owners wondering whether the business interruption coverage in their commercial general liability policy will provide coverage to offset financial losses incurred. Politicians in Washington have asked insurers to justify the refusal to pay out claims, and already class action lawsuits are being filed around the country against insurance companies.
When assessing whether business interruption coverage in a commercial general liability insurance policy applies to economic losses caused by COVID-19, the answer is—it depends on the particular policy. Generally speaking, however, most business interruption clauses require the loss of business income to be caused by direct physical loss or damage to the property that prevents the business from operating. Although it appears the COVID-19 virus can survive on surfaces for up to five (5) days, it is doubtful that this phenomenon would qualify as direct physical loss or damage to the property or be of sufficient duration to trigger most insurance clauses. In addition, many commercial general liability insurance policies exclude coverage for losses caused by viral contamination.
On the contrary, it is possible that the specific wording and coverages in any particular policy may provide coverage. For example, businesses operating in the food service industry or the hospitality industry may have specific clauses in their respective insurance policies that relate to losses caused by viruses or alternative business interruption losses like event cancellations. Consequently, all business owners who have sustained financial losses due to COVID-19 are encouraged to examine their insurance contracts.
If you need legal assistance in these matters, please contact us for a free initial legal consultation.
According to recent statistics, 4 in every 100 people suffer from workplace accidents or fatalities in Indiana. Most of these accidents and fatalities are preventable and could’ve been avoided if the employers or business owners were careful with jobsite safety and security. Businesses are required by law to comply with OSHA standards on their jobsites but it’s difficult to keep track of all sites, so some slip through the radar. The authorities recognize this gap and insist that all businesses have work comp insurance.
The Worker’s Compensation Act
If you’re injured on the job or if your loved one has died as a result of a workplace accident, you are entitled to compensation and work injury benefits from the company. The right is covered by the Worker’s Compensation Act, which mandates that all employers have insurance to cover their liability in such cases. Some employers can get special permission to pay claims from their own funds, but most will use insurance. Such cases are presented to the Worker’s Compensation Board. They decide on the compensation amount and whether there’s liability on the employer’s apart. Employers can face a lot of consequences and penalties if they don’t carry work comp insurance or provide work injury benefits to their employees. These consequences include:
- An order to cease doing business. The employer will have to arrange for comprehensive work comp insurance if they want to work in Indiana once again.
- The court will ask the employer to provide proof of financial ability to ensure they can pay any claims, deposit a security, or take an indemnity, or bond to secure compensation for all injuries or fatalities caused during the period without insurance coverage
- The employer is also considered to have committed a Class A infraction. They can be persecuted by the injured party if they can’t provide adequate compensation when needed.
As you can see, there are some protections in place to protect the interests of the employees and workers.
The Work Injury Benefits
The act covers personal injury or death claims that arise out of and during the course of employment. The compensation provides a limited number of benefits to the injured party and these include:
- Medical treatment
- Compensation for lost wages
- Compensation for any disabilities due complete loss or loss in function of a part of your body
These are the only compensations the act provides for – temporary injuries and minor disabilities. However, permanent injuries and total disabilities are a different matter because they can impact your ability to earn more income in the future. If your ability to earn a living and lead a productive life is compromised, the compensation amount and ruling will reflect that.
The employer is liable if the accident occurs as a consequence of the job and is due to errors or negligence by the employer to provide safety gear and systems. Here’s a list of injuries that might be covered by the work injury benefits law:
- Intentional Injuries – These injuries, when caused directly by the employer and owner of business, aren’t covered by work comp. You can file a civil suit to gain compensation. However, deliberate harm caused by managers, foremen, or supervisors are covered by worker’s compensation.
- Repetitive Trauma – Any trauma or bodily harm caused as the consequence of doing the job is compensable. For example, you can get compensation if you develop carpel tunnel syndrome as a consequence of the job.
- Parking Lot – Injuries and accidents caused by poorly maintained parking lots are also covered by workers compensation.
- Heart Attack – This is covered if the injured party can prove that their job or workspace environment triggered the heart attack.
- Injuries Caused in Ingress and Egress Routes – If you get injured when you enter or exit the employer’s property, you are eligible for compensation because you were on your way to work when the accident happened.
- Heat and Sun Related Injuries – This is common in outdoor jobs like construction, door-to-door sales, etc. If you have heat stroke, sunstroke, or heat prostration and can provide it could’ve been avoidable, you will earn compensation.
- Psychological Trauma – Psychological trauma caused by the job or at the workplace is also considered compensable. This can be due to stress, poor workplace environment, bullying and threatening at the workplace, etc.
What Steps Should You Take When You Experience Workplace Injuries?
Your actions immediately after the injury can compromise your case if you’re not careful. Here’s what you need to do immediately after you’re injured:
- Get medical assistance without delay. This should be your first step because delays can worsen the injuries.
- Contact your employer and inform them of the injury as soon as you can. The more you delay, the more you compromise your case.
- File an injury or accident report when you’re able.
- Call a work injury benefits lawyer immediately.
- Don’t sign any legal document your employer provides without consulting with your lawyer.
Why Do You Need a Lawyer?
A lawyer will protect your interests and make sure you’re not pressured into compromising on the compensation. Here’s what a lawyer will do to help you:
- They’ll consider all the information you provide carefully and offer unbiased advice on compensation, liability, and your chances of winning a case against the employer if it goes to court.
- They’ll collect evidence, witness statements, and other such information to make sure the case is rock solid.
- Lawyers will also help if you there’s a fatality involved. They’ll ensure dependents of the victim are adequately compensated.
- Lawyers will shield you from the insurance company’s or your employer’s legal team. They can use pressure tactics in order to reduce the compensation amount.
Most work injury-related cases are settled outside court after thorough negotiations between both parties. They agree to a specific amount that covers expenses and compensates for the suffering caused by the incident. Some cases go to court because the parties can’t settle for a reasonable amount.
If you have questions, contact our office for a free consultation.
Are you thinking of filing a personal injury lawsuit in Indiana?
You’ve been in an accident or experienced injury due to the negligence of another person. The hospital bills are mounting, and you have no idea how you will pay them. You’re taking medication for the pain and are unable to work. What should you do? Your first step is to consult with a personal injury attorney who will review your situation and determine the best course of action.
File a Personal Injury Lawsuit or Insurance Claim?
Personal injury comes in many forms: car accidents, falls, defective products, etc. Before filing a lawsuit, you may be advised to check into filing a claim instead. This should occur before a suit is considered.
The claims process consists of a series of negotiations that take place between you and the claims adjuster of the negligent party’s insurance company. The goal is to arrive at a monetary settlement that satisfies both parties. If such an agreement cannot be reached, it’s time to consult with a personal injury attorney to file the suit.
There are a number of reasons why a compromise can’t be reached in a personal injury claim. Perhaps the claims adjuster denies the insured caused the accident or disagrees with the severity of the injuries you sustained. The insurance company may also refuse to pay the monetary amount you are requesting. This is where an accident attorney can help.
Costs to Consider Before Filing a Lawsuit
Before filing a lawsuit, you should be aware of the costs involved. Often times, a negotiated settlement is preferable to a trial because it saves you money. Trials can also be lengthy, which can result in an interruption in pay due to more time requested off work.
Expenses of filing a personal injury lawsuit can include:
• Filing fees
• Serving costs
• Lost wages as a result of time away from work
• Costs of depositions and transcripts recorded by a court reporter
• Expert testimonies from medical officials for depositions and trial
• Costs of acquiring medical records, police reports, witness statements, etc.
It is often tempting to file a suit because you are unhappy with the amount of money offered by the insurance company. This, alone, is not a reason to choose this route. Before making the decision to file, carefully consider the potential costs and time associated with going to court. Some injuries may not be serious enough to merit a trial, and you could wind up spending more than you receive in damages.
An injury is considered serious when it causes damage that is either permanent, or that limits one’s ability to perform daily activities for a certain amount of time. These types of injuries include:
• Significant scarring or disfigurement
• A body organ that is limited or altogether dysfunctional
Arbitration for Personal Injury
Arbitration is another option to consider before filing a personal injury suit. Here, both sides agree to present their case to a third party called an arbiter who then decides the outcome. The costs are much lower than those associated with a trial, and the process doesn’t take as long because the hearing can be set more quickly.
Statute of Limitations for Filing Personal Injury Lawsuit in Indiana
The time limit for filing a personal injury suit is called the statute of limitations. Failing to file before that time limit expires will result in losing your right to sue. If this occurs, you may not re-coop any damages you are seeking.
In the state of Indiana, the statute of limitations is two years. This time limit typically begins on the date the accident occurs. You’ll want to make note of both the time limit and date on which it began when contacting an Indianapolis personal injury attorney.
There is a comparative fault rule in Indiana that applies to injured persons who are found to be partly at fault for the incident or accident that led to his or her injuries. This serves to reduce or eliminate damages, depending on how much fault is assigned the injured person.
Indiana’s comparative fault rule works in this way. Suppose you are driving just over the speed limit when another car turns in front of you, causing impact. It is determined you share 25 percent of the fault, and the other driver is responsible for 75 percent. In this case, the damages you are awarded would be reduced by 25 percent. If your fault is found to be 50 percent or more, you will be prohibited from collecting damages from another at-fault party.
Auto Insurance Laws
When it comes to automobile accident claims, Indiana is a “fault” or “at-fault” state. This gives an injured party multiple options. The injured person can file a claim with his or her own insurance company, file a claim with another driver’s insurance company, making it a third-party claim, or seek damages in court. In this type of insurance settlement negotiation, the threat of going to court can be used as a bargaining tool even if a lawsuit is never filed. You can always consult with a personal injury attorney who can help you make the right decision.
Before filing any lawsuit, do your homework carefully. An Indianapolis personal injury attorney can provide you with the legal information you’ll need to decide which solution is best for you. The time following an accident or other type of personal injury is always stressful, especially when medical bills are involved, but the decision to file should never be taken lightly. You should consider the situation from all angles before entering into such a costly endeavor. However, if your injuries are serious enough, seeking damages may be the most appropriate route for you to take.
If you have been injured in an accident or incident involving another party, call Goodin Abernathy immediately to learn more about your legal options.
I Was Injured in an Accident Two Weeks Ago and Haven’t Heard from Anyone
Twenty plus years ago, the aforementioned set of circumstances would probably never have happened. In the past, the person who was at fault for your accident and injury, whether it be a motorist or a landowner, would have contacted their insurance carrier and reported the incident. That insurance carrier would have promptly assigned the matter to a claims adjuster who, more likely than not, would have contacted you within days, if not hours of the incident and worked with you to assure you that your medical bills and lost wages would be covered.
Unfortunately those days are long behind us, and today we commonly hear from our new clients that weeks have gone by since their injury occurred; they’ve not heard from anyone; their medical bills are mounting up, and they are losing income.
The reasons for this difference in the claim handling procedure are numerous, but the bottom line is that in today’s world the insurance carrier for the at-fault party is rarely going to be of any assistance to you whatsoever.
We even had instances where the injured party has attempted either by mail or telephone to contact the at-fault party to start the claim handling procedure only to run into a stone wall.
Personal injury lawyers are not magicians, however, they are well-trained and experienced in representing people who have been injured through no fault of their own. More importantly, we know how to “get the attention” of the insurance carriers for the landowners, the businesses, or the motorists who are responsible for the injuries sustained.
In addition, most people now assume that there is insurance coverage available for the at-fault party when in fact that is not always the case. The alternative to having the at-fault party’s insurance carrier pay for medical bills and lost wages often involves a claim against the injured party’s own insurance carrier through either uninsured or under-insured motorist coverage, medical payments under the injured party’s own policy.
Quite often in premises liability cases there is also medical payments coverage available to pay the injured party’s medical bills irrespective of who is at fault.
All of these different possibilities require knowledge of how the insurance industry works, of the various forms of liability insurance coverage available, and how those coverages interplay with the facts of any particular accident involving injury.
The absolute worst thing that a layperson can do is to try to traverse these obstacles by themselves, as it is all too easy to commit a fatal mistake in the claim even after you determine to whom the claim is to be made.
For all these reasons, it is extremely important for injured parties to consult an experienced personal injury lawyer as soon as possible after any event which causes personal injuries.
*Image courtesy of Stuart Miles at FreeDigitalPhotos.net