If you or your loved one has been injured while on the job or developed a work-related illness in Indianapolis, you are likely to have questions about your benefits and what the future holds for you. Nearly every injured worker who our attorneys meet with has certain questions about obtaining..."
Noe Escamilla, a construction worker and undocumented immigrant from Mexico, was injured in 2010 when he and other construction workers were lifting a large stone at a construction site in Crawfordsville, Indiana. His injury left him unable to work in construction. He sued the Shiel Sexton Company, one of the..."
When you get hurt at work, you might not immediately begin thinking about filing a lawsuit against the responsible parties. Indeed, you are likely concerned with your workers’ compensation benefits and being able to pay your medical bills and monthly rent or mortgage payment.
Yet in the days and weeks following a serious accident on the job, workers in Indiana should realize that they may be able to seek compensation by suing a third party in certain situations. Filing a lawsuit against a third party may entitle you to additional forms of compensation, including for pain and suffering or the loss of enjoyment of life.
At Klezmer Maudlin PC, we are committed to helping people who have suffered serious injuries at work in Indianapolis, Evansville and across Indiana. When you come to us about a workers’ compensation claim, we will analyze your case to determine whether you may be eligible to file a third-party lawsuit. Our experienced workers compensation lawyers can begin exploring your options with you today.
How to Know If You May Have a Third-Party Suit
You might be wondering what we mean when we refer to a “third-party lawsuit.” While this might sound like a complicated legal term, we can explain how a third party lawsuit might entitle you to additional damages when you suffer an injury or illness on the job.
In short, if you get hurt at work, you typically will not file a claim against your employer even if your employer failed to take certain precautions concerning worker safety. In such a case, your employer usually will be covered by workers’ compensation insurance. However, there might be another party — someone who is not your employer or a co-worker — who was at fault in some way for your accident and resulting injuries. This other person is the third party against whom you might be able to file a lawsuit.
How can you know if you could file a third-party case? It is extremely important to discuss your case with a workers comp lawyer in Indianapolis who can help to determine the best way for you to seek damages.
There are a number of common work injuries that could lead to a successful third-party lawsuit, including:
- Construction site injuries to subcontractors
- Work-related car accidents
- Injuries to delivery drivers at delivery sites
- Injuries caused by defective or dangerous products
- Slip and fall accidents
If someone other than your employer or co-worker causes an accident, or if you get hurt on property other than your place of employment where you are doing a job, you may be able to file a third-party claim.
Construction Site Injuries to Subcontractors
One of the most common types of workers’ compensation injuries that can also lead to a third-party lawsuit are those involving construction site injuries to subcontractors. Why do these incidents lend themselves so well to third-party claims? By definition, the U.S. Bureau of Labor Statistics (BLS) explains that a contractor is someone who is employed by one party but is currently doing work on behalf of another company. Often, a subcontractor who gets hurt on a construction site might be able to file a lawsuit against a couple of different third parties, namely the general contractor or the property owner.
How might this work? Let’s say there is a subcontractor who was working on scaffolding at a construction site and falls. The fall results in serious spinal cord injuries and broken bones. The subcontractor might be able to file a claim against the general contractor in addition to filing a workers’ compensation claim if the fall resulted in part from the general contractor’s negligence. In addition, the subcontractor may be able to file a third-party lawsuit against the property owner (where the construction took place) if the property owner failed to correct or warn about a hazard on the property that contributed to the accident. If a property owner subjects someone to a known hazard, that property owner may be liable for resulting accidents and injuries.
Car Accidents During the Course of Employment
Another common workplace accident for which injured employees file third-party claims is a work-related car accident. Work-related auto accidents are discussed at length in a fact sheet from the Occupational Safety and Health Administration (OSHA).
Who is often the liable third party in these incidents? There may be a few different answers depending on the details of your case. Let’s say that you are a delivery driver and are transporting items for your employer. While you are on the road, a distracted driver crashes into your van and causes serious injuries. That driver may be held liable through a third-party lawsuit.
In another example, you might be delivering items for your employer when a defective car part causes you to be involved in a single-vehicle accident that causes serious injuries. You may be able to file a third-party claim against the manufacturer of that defective car part. Whenever a defective product, from automobile brakes to dangerous machinery, causes a serious accident during the course of employment, the injury victim may be able to seek additional compensation from the designer, manufacturer, or retailer of the product.
Can You Recover from Workers’ Comp and a Third-Party Claim?
Many injured workers in Indiana want to know if they can obtain benefits from workers’ compensation while also recovering damages through a third-party claim. In short, the answer is yes. You can apply for and recover workers’ compensation benefits while also being awarded damages in a third-party lawsuit. A workers’ compensation lawyer in Indianapolis can discuss the specifics of your case with you.
Contact an Experienced Indianapolis Work Injury Lawyer
Whenever you get hurt on the job, you should immediately begin thinking about filing a workers’ compensation claim. At the same time, however, you should also consider filing a third-party lawsuit to seek compensation for the losses that are not covered by workers’ compensation. Keep in mind that non-economic damages, such as those for pain and suffering, will not be included in your workers’ compensation claim.
An experienced lawyer can speak with you about your case today and your options for filing a third-party lawsuit. Contact Klezmer Maudlin PC to learn more about how we can assist you.
A compensable claim is a claim covered under the Workers’ Compensation Act. For a claim to be covered under Workers’ Compensation, the injury must arise from an accident out of and in the course of employment. However, it is important to note just because an injury occurs at work does not mean the injury is covered under the Act. Furthermore, just because the injury occurs during work hours does not mean the claim is automatically covered.
Let’s look at some examples:
- Slip and Fall Employee A is at work and during the course of his normal work slips on a wet floor and hits his head. This scenario would be covered under the Act. However, if Employee A comes to work feeling light headed and faints while at work and hits his head, the employer would not be responsible for any injuries sustained as a result of the fall.
- Parking Lot Employee A is walking into work and injures himself in the parking lot. If the injury is within a reasonable time period of the work shift and the parking lot is associated with the place of employment, the injury is likely covered. However, if Employee A voluntarily returns to the work parking lot to watch 4th of July fireworks and sustains injuries, such injuries would not be covered.
- Lunch If an employee is on the employer’s property during his/her lunch hour, an injury may be covered. However, to determine coverage the injury would have to result from reasonable activity during the course of employment.
- Ingress and Egress The time required to enter and exit the employment premises is generally covered by the act. This is closely related to parking lot injuries. If Employee A is walking into work and slips on a sidewalk, this may be covered under the Act as entering the building using the employer’s sidewalk is reasonably within the course of business.
What happens if I don’t report the accident the same day of the occurrence?
While it is a good idea to report your injury to the appropriate supervisor as soon as possible, delaying reporting your injury does not preclude you from recovering.
Are heart attacks covered by the Act?
Heart attacks are covered under the Act if the employee can prove that there was some kind of unusual stress or exertion during the course of employment that triggered the heart attack.
How long do I have to work for my employer to be covered under Worker’s Compensation?
There is no timing requirement to receive coverage under workers’ compensation. If you are injured on the job the first day you receive the same coverage as an employee working for 25 years.
If I am injured on a work-sponsored retreat, party or recreational activity, am I covered under the Act?
The key word here is work-sponsored. If the retreat, party or recreational activity is sponsored by, encouraged by or mandatory by order of the employer, any injury resulting from the activity is likely covered under the Act. For example, Employer A requires all employees to attend a teambuilding work retreat. During the course of the retreat, employees are required to participate in a trust fall exercise. If an employee is injured during the exercise, the injury sustained is likely compensable under the Act. However, if employees engage in an activity voluntarily (such as a pick-up basketball game on a weekend), injuries sustained are not compensable under the Act.
What is a PPI and what is a PPI Examination?
PPI stands for Permanent Partial Impairment. A PPI rating is a percentage ranging from 0-100 that describes your permanent loss of physical function. At the end of treatment when an injured employee reaches maximum medical improvement the treating physician will issue a PPI rating. This rating will then be used to determine a dollar amount reward based on the impairment to the injured employee’s body.
What if I disagree with my PPI rating?
If you disagree with your PPI rating you are entitled to a second opinion from a different doctor. However, a second PPI examination and report will be an added expense not covered by the Act.
What is an MMI?
An MMI stands for Maximum Medical Improvement. You reach your MMI when your treating physician says you do not require any more medical treatment.
What is an IME?
IME stands for Independent Medical Examination. If your TTD benefits are terminated because you have reached your maximum medical improvement, you are entitled to an IME. The IME is a second opinion with a doctor appointed by the Indiana Workers’ Compensation Board.
Is Workers’ Compensation taxable?
No, but any questions pertaining to reporting should be directed to the IRS.
What if my employer does not have Workers’ Compensation Insurance?
Employers are required to have worker’s compensation insurance under Indiana law. Failing to do so can result in employers being penalized. Contact the Indiana Workers’ Compensation Board (1-800-824-COMP) to verify whether your employer has insurance.
I live in another state, but I was injured while on the job in Indiana. In which state should I file a claim?
If you work in Indiana or your employer is based in Indiana, you should file a workers comp claim in Indiana.
Can I collect Workers’ Compensation benefits for pain and suffering?
No. Under the Indiana Workers’ Compensation Act, injured employees cannot recover for pain and suffering. However, if you are suing a third party, this would be a civil action in which case you could sue for damages such as pain and suffering.
What is an example of a third party lawsuit?
Employee A works for a nursery delivering flowers. Employee A is on a flower delivery run in a company vehicle. As he is driving, another vehicle runs a red light and hits Employee A, resulting in injuries. Because the injuries occurred within the course of employment, Employee A may recover under the Act and sue the other driver. The other driver becomes the third party.
Can I get a settlement for my Workers’ Compensation claim?
If you are injured on the job and suffer some kind of permanent disability, you are entitled to a settlement, usually paid in a lump sum. However, if you fully recover from your injury after treatment or therapy, you may not be entitled to settlement.
My spouse died as the result of a workplace accident. Can I collect Workers’ Compensation?
If a family member dies as a result of a work-related accident, the Workers’ Compensation Act provides that the surviving family members can receive benefits through the life of the surviving spouse.
I received a bill from the Workers’ Compensation doctor. Do I have to pay the bill?
If your claim is approved, you do not have to pay for medical treatment that resulted from a work injury. If your claim was denied, you may still elect to not pay for medical treatment and indicate you are in the process of having your claim approved.
My restrictions prevent me from returning to my job. What should I do?
If you were injured on the job, you are entitled to Vocational Rehabilitation services from the State of Indiana. However, these services are not paid for under the Act and will be an out of pocket expense.
The next series of blogs will address denied claims. A workers comp claim can be denied for several reasons. However, just because a claim is denied does not mean that all hope is lost. First, we will address possible reasons your claim was denied. Next, we will look at the next steps to take to file your own claim with the Workers’ Compensation Board. Last, we will look at what you should do in the interim between your claim being denied and hearing from the Board.
You can visit our office at any point in your workers’ compensation claim process for a free consultation with an attorney. It is important to keep any and all documentation to help in the claim process.
I was injured at work. Why was my workers compensation claim denied?
This blog post aims to address the reasons your employer may deny your claim. If your claim has been denied, you can schedule a free consultation to discuss your claim.
So, you are injured at work, you file a claim, and your claim is denied. A denied claim occurs when your employer or your employer workers’ compensation carrier does not believe your claim is compensable.
Even though workers’ compensation is a “no fault” system, an employer still has the right to deny a claim under certain circumstances.
No compensation is allowed for an injury or death due to an employee:
- Knowingly self-inflicting the injury or death;
- Being intoxicated at the time of the accident which is the proximate cause of the injury;
- Committing an offense which led to the injury;
- Knowingly failing to use safety equipment or apparatus;
- Knowingly failing to obey a reasonably written or printed rule of the employer which was posted in an obvious place;
- Knowingly failing to perform an official duty of the job, which directly led to the injury.
If your claim is denied, your employer or the workers’ compensation carrier must let you and the Workers’ Compensation Board know through the Report of Claim Status/Request for Independent Medical Examination (Form 38911). Both you and the Board must receive the form within thirty (30) days of the employer’s knowledge of the accident. This form should state one of the above reasons for denying your claim.
So what do these categories mean? Let’s break down the category: “knowingly failing to use safety equipment or apparatus.”
For our example, Bob Builder works installing roofs. Bob’s boss informs him he needs to wear a harness for safety to install roofs. One day, Bob decides to not wear a harness and falls off a roof. It appears Bob was injured at work. However, his boss could still deny his claim under “knowingly failing to use safety equipment or apparatus.” To determine if Bob’s claim should be denied, we ask the following question:
- Did Bob knowingly fail to use safety equipment at the time of the accident?
If Bob knew he was required to wear a harness and deliberately failed to use the safety equipment, Bob’s claim may be denied.
Yet, Bob could still prevail in his claim. Let’s say Bob’s boss informs him he should wear the harness to install roofs, but it is common practice for Bob and his co-workers to not use a harness. And, let’s say Bob’s boss is aware no one uses a harness. Here, Bob could argue his boss knew no one used the harness and the harness was not enforced.
Look at your Form 38911 to see why your employer or workers’ compensation carrier believes your claim should be denied. Now that you understand the why, let’s look to the next steps in the claims process.
My claim is denied because of X, but I do not agree. How do I appeal?
This blog post aims to address the next steps after your claim is denied. If your claim has been denied, you can schedule a free consultation to discuss your claim.
your workers compensation claim denied for reason X and you do not agree. What steps can you take now?
First, be aware of the statute of limitations for you to file a claim. In Indiana, injured workers have two (2) years from the date of the work accident to file his or her own claim with the Workers’ Compensation Board. To file a claim, you must complete an Application for Adjustment of Claim (Form 29109) and send the form to the Board.
Workers compensation claim denied by employer, I filed my own claim with the Board, but I’m still injured. Now what?
If your appeal is denied, your medical expenses will either be out-of-pocket or through your personal insurance.
When a work injury causes an injured worker to be unable to perform work of the same character or nature of the job the worker was doing, the worker is entitled to Temporary Total Disability (TTD). TTD is calculated as 2/3 of their Average Weekly Wage (AWW), which is derived..."
Congratulations to attorney Nathan Maudlin and our client, William Gordon. This month, the Indiana Court of Appeals reversed the decisions of the Indiana Workers’ Compensation Board and Full Board and awarded our client 121 weeks of TTD pay after the Court of Appeals determined that the employer failed to properly notify our client of the consequences of refusing light duty work.
Click here for the next of the full Court of Appeals Decision: http://www.in.gov/judiciary/opinions/pdf/04191602ewn.pdf
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The rule in temporary partial disability is that during the period of doing light duty if the person earns less than they did at the time of their injury, they are entitled to two-thirds of the difference. For example, if the average weekly wage at the time of an injury is $900 (gross), and during light duty because of being unable to work overtime or for some other reason, the employee actually earns $600 (gross) there is a different of $300 and the employee would be entitled to $200 in temporary partial disability.
In that same example, if the injured employee was totally off work the temporary total disability rate (TTD) would be two-thirds of the average weekly wage or $600. Many times the employee believes he may not earn more than the TTD rate while working light duty. This is not correct. In the example above, the individual actually earned $600 performing light duty and they are still entitled to two-thirds of the difference between the average weekly wage and what they actually earned. This is a common misunderstanding and you need to make sure that you are getting everything to which you are entitled under the law. Contact us today for your workers’ compensation claim.
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