Recent Posts in Workers' Compensation Category

Ok, in truth, I thought this was a cool sounding title for an article.  In reality, sometimes you will have no choice but to accept “no” for answer. However, on average the number of attorneys that our clients talk to before they call us and we said “yes” is between 2 and 4. Is that because we have a lower standard for what cases we will take? – No.  Is it because other attorneys don’t always take the time to consider all of the possible ways to “skin a cat”? – Yes.

Thinking outside the conventional “box” made this firm what it is. Our staff solves problems. Now, that does not always mean that the case goes forward exactly as you might think. Sometimes, the path less traveled is best. Sometimes, the answer just requires a different perspective. The following two scenarios are examples of the many types of cases where many lawyers said “no” before we got a hold of it, and got a good, if not a great, outcome for our clients.

A)        EMPLOYER/INSURANCE COMPANY DENIES WORK COMP BENEFITS

This happens all the time. A denial can come because the employer let his work comp coverage lapse, or when an employer has coverage, they claim that the particular injury “did not arise out of the course and scope of employment.”

There are a couple ways to look at a situation like this. Most lawyers you call will take the knee-jerk reaction that the natural attack point is to directly confront this claim in the administrative work comp setting. And, often if you were to consult a one-dimensional thinker, that attorney, in considering taking your case will, mid-conversation, stop listening to you and commence a mental calculus as to whether given the work comp system,  it would be worth his efforts and time to help you. Yes, surprisingly, as you are talking to that lawyer about a fall on the job site and injuries that you suffered, often all the lawyer is thinking about are the worker’s comp criteria including how old you are and what your average weekly wage is. I am not asking you to judge the one-dimensional thinker, but simply understand where their troubled soul lives.  When you hear “no” from that lawyer, do not stop your inquiry for legal help. Keep calling and talking to more and more lawyers.

How would we look at this sort of case? Perhaps from a completely different perspective. Well, first, an insurance company denying a claim for us can be a very exciting thing. Ok, well, exciting for us, perhaps. But, maybe the better legal word would be challenging or perhaps an opportunity.

Take the fall on the job example that the employer says is not work related. Say the injury is a knee injury requiring a surgery. If this were to simply be a work related work comp knee injury case, regardless of the severity, need for surgery or even extent of disability, it is sadly (and wrongly) worth very little in our work comp system. But, taking the denial by the employer, gives the injured client an opportunity to bring a direct, non-work comp, lawsuit against the negligent party that caused the injury, even if that is the employer.

After all, the employer/insurance company is saying it isn’t work related. Under an admitted work comp claim, the sole means of recovery allowed under the law is the work comp system itself.  This is not the case when there is a denial.  Therefore, the need to limit ourselves to work comp benefits is unnecessary. Suddenly, we have a possible case in front of a jury in a district court trial setting.

Juries know the value of a disabled knee and surgeries. We love it when an insurance company in an effort to be clever, let’s us reap the benefit for our client. A knee surgery in a non-work comp setting is very valuable. While, many would look at this simply as a less than worthwhile, we look at it as an opportunity to un-tie the limitations that work comp has on such a claim, take the short-sighted mistake of the insurance company or employer’s denial and use it to elevate the case into a district court jury trial where the sky is the limit on recovery.

We have taken these cases under this situation, many times in the past.  The results have, to memory, always been that the client was happy that he kept calling lawyers hearing “no” and particularly, that he kept calling until he heard “yes” from us.

B)        INSURANCE COMPANY DENIES AUTO INJURY CLAIM BECAUSE THE CAR INVOLVED WAS STOLEN OR INJURIES RESULTED FROM ROAD RAGE

Anytime a vehicle that causes the accident was either stolen or the product of intentional conduct, such as “road rage” (even if the at fault driver was otherwise insured) it is not unusual to have the insurance company deny the claim.

Again, if you call up the one-dimensional thinker, it is possible if not probable, that he will think about whether the perceived extent of your injuries will confer sufficient dollar recovery to justify his time and efforts. On the other extreme, too severe of injuries can also scare this timid creature away.  Again, the life lesson and the theme of this article is: do not be afraid to keep calling even after hearing “no.”

How do we see these claims? Again, for us, this factual scenario is filled with great and innovative possibilities.

First, a car that is STOLEN, would certainly allow us to prosecute an uninsured motorist claim against our client’s own coverage. Seems easy, and yet regularly missed by the one-dimensional lawyer. But, for us, this is only a starting point into further inquiry.

We would ask, what caused the thief to crash? Was he running from the police, was he being chased by the owner? That might be an additional source of recovery. Was the vehicle really stolen? What was the relationship between the owner of the vehicle and the alleged thief?

We have had cases where the owner of the vehicle learns that their child was driving a car resulting in a crash. The owner on the spot decides to claim that the car was stolen simply to avoid the consequences for his insurance company. Often, these alleged stolen vehicles are nothing but nonsense that a good old fashioned lawsuit can clear up.

How about a case of “Road Rage” where the victim is hurt, but, no surgery or major, long term medical follow up is required?

One-dimensional thinkers would say, “gosh, the uninsured motorist just isn’t going to pay very much in a conventional claim brought in a demand for settlement fashioned against an uninsured motorist coverage.” Well, he would be right, if that is as far as you chose to think about it one dimensionally.

But, by thinking creatively, another possibility is that a lawsuit be brought against the road rage driver. The outrageous conduct of the driver can drive the dollar value of the loss.  Sue the road rage driver personally in a lawsuit, and give notice to the uninsured motorist insurer of our intent to bind them to the results of any eventual jury result. This puts the insurance company squarely indemnifying conduct, not just injury.

This is a way where the nasty conduct of the aggressive driver would be told to the jury. At the conclusion of the evidence, the jury will be left with a jury verdict form. Under the right circumstances the conduct of the driver could very much serve to substantially raise the value of the case as measured by the jury verdict form. This is not conventional thinking– but it is creative, completely legal and to our surprise is often not considered by one-dimensional thinkers.

Again, our clients who heard “NO” time after time before they contacted us will tell you that it was worth the rejection to finally get a connection with a law firm dedicated to solving problems and using creativity to achieve results.

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CONCLUSION

Few things are more important than the selection of the right attorney to assist you after and injury accident. We know how tough this process can be emotionally. Going through the process of talking to various attorneys will result in certain impressions in your mind. Will this lawyer listen to me? Does this lawyer care? Do not be afraid or recoil from the process simply because you receive negative reaction from certain lawyers. Where possible, do not take NO as your final answer.

At ANDERSON HEMMAT & LEVINE, we will take the time to listen to your claim and use our creativity, experience, and downright tenacity to try and formulate a solution to your case. Even if you have been told “NO” from some other attorney, please contact us today so we can find a way to tell you “YES”.

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Often, an employee who has been injured on the job will later find out that his employer is alleging that the injuries were due to the employee violating a safety rule.  This type of defense is commonly known as a “Safety Rule Violation”.

THE EFFECT

The effect of a declared safety rule violation is that it results in a 50% reduction in temporary and permanent benefits for the worker.  This reduction in what an employer must pay is obviously a strong incentive to employers and their insurance carriers.  If an employer is successful in asserting a Safety Rule Violation, it could potentially save them and their insurer A LOT of money.

All those savings come directly out of the employee’s much needed benefits.

ELEMENTS

A classic example would be a construction worker who gets injured while not wearing his helmet on a construction site. This would be a legitimate safety rule violation if, and only if, the safety rule was:            

(1) In WRITING,

(2) PROVIDED to employees as a policy,

(3) Actually ENFORCED as a policy, and

(4) There was CAUSATION between the violation and the safety rule.

WHAT TO DO?

If you get notice that your employing is claiming a Safety Rule Violation, ask yourself whether the alleged violation was really a policy at all, or whether it was really enforced, or whether the violation of the rule had anything to do with you getting injured or the extent of injury. If the answer to any of these questions is no, then you have a good chance of defeating a claim for Safety Rule Violation.

OUR EXPERIENCES

At ANDERSON HEMMAT & LEVINE, LLC we have successfully defeated a great majority of employer’s efforts to allege an erroneous safety rule violation. Examples of these erroneous defenses that we have overcome include a delivery company that claimed it had a policy of requiring drivers to wear seat belts, even though half the seat belts in its vehicles were non-operational.

Another employer tried to claim the lack of a safety belt as a violation in a roof crush automobile accident with no evidence that the injuries would have been lessened in the least (if not made worse) had the employee worn his safety belt.

Other examples include the requirement to wear a roof harness when the employer never truly required roof harnesses be worn, and worse, did not have enough on site for all its workers.

Another company asserted the required wearing of the hard hat on the construction site was a safety rule violation even where the injury was entirely unrelated to head injury.

Imposing a safety rule violation requires a hearing. So the time to act is immediately. There are circumstances where employees have ignored claims of safety rule violation because the employee did not know the long term effects. But letting this issue slide can cost you thousands of dollars or more.

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If your employer is claiming that there was a Safety Rule Violation in your work comp case, call us at ANDERSON HEMMAT & LEVINE today and we would be happy to help you fully analyze your claim.

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A Familiar Story

A salesman for a manufacturing company has an early morning customer meeting and needs to swing by his office to pick up updated order forms. His regular days in the office are Tuesday and Thursday. His sales call days are Monday, Wednesday and Friday. On this day, it happened to be a Friday. The factory opens at 7 am for machinist and 9 am for office workers.

At 7:15, as the salesman is walking up to the main entrance, he slips and falls on a huge ice buildup right at the doorway. His injuries include a severed ACL and MCL in his right knee. Immediately, upon reporting the claim to his supervisor he receives resistance. Eventually, the employer’s insurance carrier denies the claim entirely.

The salesman hires AHL.

What Happens Next ?

There are several ways to look at this claim. One way is to simply argue that this is a work related injury. However, one could also look at this as an opportunity.

The ‘Familiar Story’ is EITHER a workers’ compensation case (with its limitations on doctors that can be seen and limits on the value of the injury) OR it is a negligence claim against the employer (with few limits and lots of possibilities for full compensation). 

Simply stated, if the employer admits this claim as a work related claim, the law of Colorado would prevent a separate claim against the employer for an unsafe buildup of ice on the walk way. That is called our Exclusive Remedy rules.

The employer/insurance company doesn’t get it both ways. If they resist the Work Comp claim by insisting the injury did not occur within the “course and scope of the worker’s employment” then they may very well be exposing themselves to a NO HOLDS BARRED CIVIL ACTION.  Such a civil action is no different than any other that could be brought for an unsafe condition on the employers premises.

In this circumstance what might be a marginal valued worker’s compensation claim, became a very lucrative non-work comp civil action under our Colorado Premises Liability Act – All because of the shortsightedness of the employer who wrongfully denied the claim in the first place.

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If you have been injured at work and your employer is now denying your claim, call us at Anderson Hemmat & Levine today.  There are likely other options available to you for your claim and we can help you determine which is the best for your case.

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So you get injured, it's not your fault, and you decide it's time to call a lawyer and get some advice.  The lawyer starts off very politely, almost likeable.  But at some point in the middle of the story, he interrupts you and mumbles the words "exclusive remedy."  Suddenly, he's less polite and not in the least bit likeable. Within minutes, he gives you some kind of mumbo- jumbo reason why he can't help you, and again, you think you hear the words "exclusive remedy."

In these circumstances, we are often that person's next call. This blog will try to explain what the term "exclusive remedy" means and hopefully will help you understand why finding the right lawyer is so important.

A) WHAT IS IT?

"Exclusive remedy" is a term that is found in Workers' Compensation laws.  At its core, it means that if your employer has workers' compensation insurance for its workers, then the only recovery an injured worker can receive for a work-related injury is through that workers' compensation insurance. That means that this worker cannot sue the employer for causing his injury.

For example, a customer walks into a furniture shop and steps in a large puddle of water on the floor.  He slips, falls, and breaks his ankle.  If need be, that customer could bring a district court lawsuit against the furniture shop that could end in a jury trial.  That customer could seek to recover past and future medical bills, past and future wage loss, money for permanent injuries, and, of course, money for pain and suffering.

Now change one fact from this example.  Assume that the person is an employee of the furniture shop rather than a customer.  Same company, same puddle…totally different outcome.  Assuming that the furniture shop has workers' compensation insurance for its employees, no district court jury trial is allowed under the law.  The employee's exclusive remedy is found in Colorado's Worker's Compensation Act.  The legal landscape is totally different.  Workers' Compensation insurance is supposed to pay for all authorized medical care.  It does not pay for pain and suffering and the verbiage used to describe past and future wages is called temporary total and permanent partial disability.

B) SO IS EXCLUSIVE REMEDY A BAD THING?

Actually, no.  Under the right circumstances, a workers' compensation case can provide very complete and competitive injury compensation.  In the "Results" section of this website, there are multiple examples of high-dollar recoveries we have obtained for workers' compensation clients.

C) WHY DO SOME LAWYERS GET RUDE AND LOSE INTEREST WITH YOU?

The reason is likely because you are a person injured on the job who is seeking to bring a claim against your employer or a co-employee you feel is at fault for your injury.  Under these circumstances, Colorado's Worker's Compensation Act is your "exclusive remedy."  Under other circumstances, a separate lawsuit can be pursued against a third party responsible for your work-related injury if that third party is not your employer or a co-employee.  There are lawyers who focus their practice on workers' compensation only.  My guess is they get a little grumpy with potential clients who want to pursue injuries beyond their comfort in the workers' compensation arena.  There are other lawyers who focus only on personal injury cases and know very little about workers' compensation.  If a person is injured on the job and has the right to bring a separate third party claim, many lawyers are unsure how to handle the interplay between Colorado's Workers' Compensation Act and the general negligence laws of our state. 

ANDERSON, HEMMAT & LEVINE, is a firm equally practicing in both the areas of workers' compensation as well as general personal injury.  Therefore, we can help you coordinate the benefits between the two systems. 

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There is a great deal of confusion about Workers' Compensation "exclusive remedy" situations. Let's try and make things a little clearer:

1) On-the-job motor vehicle accidents:

While this area confuses a lot of lawyers and injured people, this is not an exclusive remedy problem.  An injured worker can recover workers' compensation AND bring a lawsuit against the negligent driver AND recover from both sources.  Be careful though.  By law, some recovery that you get from the auto insurance for the at-fault driver needs to be paid back to the workers' compensation insurance.  The workers' compensation insurance carrier has what is called a lien against your settlement proceeds.  It's complicated should probably be handled by a professional.

2) Injuries on a job site caused by employees of different companies:

Again, this is not an exclusive remedy situation. An injured worker in this situation can make a workers' compensation claim AND bring a lawsuit against the company whose employee caused the accident.

3) Injured worker employed by a subcontractor and injured by the general contractor

This might seem like a non-exclusive remedy situation. But actually, pursuing a claim beyond workers' compensation DOES violate the exclusive remedy provisions.  Thus, this worker would be limited to the recovery outlined in Colorado's Workers' Compensation Act.

4) Injured worker employed by the general contractor and injured by a subcontractor

It's tricky, but this is not an exclusive remedy problem.  The worker can recover workers' compensation benefits and also sue the subcontractor.

5) Employee injury caused by employer and employer has no workers' compensation insurance

Colorado has special laws that let an injured worker pursue his uninsured employer either through the administrative process of workers' compensation or through a district court jury trial action.  In district court, if the worker proves even 1% negligence on the part of the employer the employee can recover 100% of the damages awarded by the jury.  This is a very unique feature of Colorado law that most lawyers don't know about.

D) CONCLUSION:

There are many situations involving workers compensation and personal injury claims where more than one claim can be pursued.  "Exclusive remedy" provisions prevent bringing separate claims under certain circumstances.

If the attorney you call about your problem seems short with you about your case, you are probably dealing with a lawyer who is not within his comfort zone and is probably "over his head."  The good news is that there are attorneys that practice in both workers' compensation and personal injury and welcome the challenge of the complicated interplay between these two areas. 

If you have been injured and treated unfairly, let ANDERSON, HEMMAT & LEVINE be your first call.

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Workers' Compensation law in Colorado can be both unusual and even illogical at times. Injuring oneself lifting a heavy equipment at work, or cutting one's hand on the job are traditional workers' compensation injuries. However, a good workers' compensation attorney is always thinking "outside the box." We have had many injury victims come see us after being told by other lawyers that nothing could be done for them. But, in fact, they had perfectly good, and even very lucrative, workers' compensation claims. They did not know it, but even more scary, the attorneys they met with before us didn't know it either.

Some interesting examples of nontraditional, but yet valid, workers' compensation claims include:

Example 1)

A traveling salesman sustains an injury while traveling for work, but injures himself on a non-work day when he slips and falls while getting into a hotel pool.

ANSWER: Yes, it is a valid workers' compensation claim.

Example 2)

An employee already injured on the job gets rear-ended on his way to physical therapy.

ANSWER: Yes, it is a valid workers' compensation claim.

Example 3)

After having a knee surgery due to a workers' compensation injury, an employee injures her other knee, while at home, due to the extra stress put on by the weight being taken off the first knee.

ANSWER: Yes, it is a valid workers' compensation claim.

Example 4)

An employee who works at a restaurant at the top of a ski mountain injures herself skiing to the restaurant 30 minutes before her shift starts.

ANSWER: Yes, it is a valid workers' compensation claim.

Example 5)

An employee parks her car at her work parking lot. Just as she gets out of her car, another car runs her over.

ANSWER: Yes, it is a valid workers' compensation claim.

Example 6)

An employee goes in for a workers' compensation ankle surgery but is mistakenly given an unnecessary knee surgery. 

ANSWER: Yes, it is a valid workers' compensation claim.

And guess what? As you might have suspected, every one of these examples was an actual case our firm took on, and won! In fact, each one was turned down by at least one law firm before they came to see us.

It is not always obvious what is or what could be a valid workers' compensation claim.  But at ANDERSON, HEMMAT & LEVINE, we are always working to help our clients get justice. If you need help understanding your workers' compensation rights we always provide a free consultation.

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There are a lot of occupations that require driving as part of the job. Some of those jobs include bus drivers and truck drivers. But, other jobs involving some driving include utility workers, landscapers, architects, etc. Any job that requires an employee, for the benefit of his/her employer, to get into a vehicle and run an errand, is a potential worker’s compensation motor vehicle accident.

We find that when we meet auto accident victims injured on the job, they often are confused about  their rights. While Colorado does subscribe to the principle of worker’s compensation being a worker’s EXCLUSIVE REMEDY, when it comes to the negligence of another party (as long as it is not a co-employee), an injured worker has the right to bring a separate claim and even a lawsuit against the at-fault driver’s insurance while STILL receiving worker’s compensation benefits.

If a driver is working at the time of his car crash, and that driver caused his own injuries, he has a right to benefits through his employer’s worker’s compensation insurance, regardless of fault. Alternatively, if that driver was injured on the job and the injuries were caused by the other driver’s negligence, he can claim and receive medical care, temporary wage benefits, and permanent injury compensation from his employer’s worker’s compensation insurance, BUT also receive a settlement from the negligent driver’s auto insurance company.

These cases can become complex in that the worker claiming benefits from the at-fault driver’s insurance may be required to payback some money recovered from that source back to worker’s compensation. However, bringing claims against both the worker’s compensation insurance company and against the at-fault party’s insurance can be very helpful to assisting accident victims in achieving higher levels of compensation. 

In such a circumstance, we recommend that a careful review occur at the earliest possible time with an attorney versed in both auto accident and worker’s compensation laws. 

Remember, at Anderson, Hemmat & Levine we are happy to help you with these matters and always offer a free consultation.

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