Des Moines Personal Injury Lawyer - Workplace Injuries - Most Commented

Construction Safety - What is Fall Protection?

Justin Rogers — Thu, 03 Jul 2008 09:00:00 GMT

This blog is the first of a multipart series directed towards construction workers who have been injured or killed from a fall, their families, and their attorneys. A number of men and women, in a number of different professions, risk being injured or killed from a fall while performing their employment duties. According to the Occupational Safety and Health Administration (OSHA), one-third of all fatalities in construction are the result of a fall. In addition, the National Institute for Occupational Safety and Health (NIOSH) report that the construction industry has more deaths from falling from an elevation than any other industry.

Construction worker falls can occur in a number of different situations and are sometimes the result of the most unusual of circumstances; however, no matter what the situation or circumstances, falls are preventable. Dangerous hazards that increase the risk of injury or death from a fall can be found all over a construction site. Roofs, open windows, skylights, bridges, scaffolding, aerial bucket trucks, steel I-beams, and walkways are all hazards where a fall could mean serious injury or death. Findings in an investigative report by NIOSH show that between 1980 and 1994 there was an average of 540 fatalities per year as a result of falling from elevation. The Bureau of Labor Statistics state that in 2006 the number of fatalities due to falls was 809, which was 2% below the all-time-high in 2004. Due to the dangerous and unpredictable nature of construction sites, it is easy to see how falls can happen anytime, anywhere, and under any circumstance. However, there is no reason that the number of construction worker fatalities and injuries cannot be reduced by training construction workers, adopting a fall protection plan, and using safety devices.

All of the hazards listed above are ones which are obviously dangerous. Where workers are placed in an environment where hazards pose an obvious threat of injury or death, steps should be taken to ensure their safety. The fact that a safety harness is uncomfortable or that it is too burdensome to train workers about fall prevention is no excuse. Following the standards and regulations regarding fall preventions is just like wearing your seat-belt; if you don’t, you’ll wish you did. It’s that simple.

In this series of blogs, a number of important issues related to protecting workers from falls will be addressed such as fall protection plans, personal safety devices, industry standards and regulations, and worker training programs.

Originally posted at InjuryBoard by Justin Rogers

Construction Safety: Falling pole kills co-worker, benefits may depend on a quick investigation

Steve Lombardi — Wed, 29 Jul 2009 18:36:24 GMT

In what can only be described as a tragedy, a construction worker today was killed after a utility pole was knocked over striking and killing him. The utility pole was backed into by a fellow worker operating a Bobcat with a bucket on it. The worker that died was 32 years-old and his fellow worker was 57. The accident occurred at 10:15 a.m., just south of S.W. 26^th Street and Watrous Avenue in Des Moines. The younger man was pronounced dead at the hospital.

Someone needs to take photographs of the pole and the accident investigation site. Whoever is in charge of the dependent children needs to hire someone to get in there and photograph the location before the owner removes and destroys the pole. How that pole was seated in the ground may be a very important fact and pictures a sometimes worth a thousand words.

There are several interesting legal points to this story. First, the younger man leaves two young children behind. Hopefully this young man’s employer had workers’ compensation coverage that will pay these children benefits through college or at least through high school (age 18). It’s not unusual that smaller contractors don’t have coverage; that’s not legal, but lawyers see it often in the construction industry.

Second, the dependents of this young man would have a claim for the workers’ compensation benefits and also may have a claim against the owner of the pole. The Des Moines Register article includes a reference to a spokesperson from MidAmerican Energy Co who said the pole was not one of theirs and did not carry electrical lines. Mediacom said they commonly rent poles and Qwest hadn’t yet commented. So who owned that pole? This pole is interesting in that it was caused to fall down when the Bobcat backed into it; a scenario unlikely to normally happen. It should take a lot of pressure to cause a utility pole to fall down. Normally they snap. And that’s the rub, as I like to say, of this case investigation. Why did it fall down so easily?

Which leads me to the third and final point; the case investigation to preserve valuable evidence. I remember driving towards Des Moines on Grand Avenue one day many years ago when I noticed a pole that had been struck by a car. The power company had a truck on location and was in the process of setting up to take the pole down and set it father away from the street. A client lived at that location so I pulled in to talk with him; he was standing on the sidewalk watching. Immediately I took out a camera and began taking photographs, which later were sent to the attorney representing the man whose legs were apparently pinned between the pole and a car bumper in the accident. Had I not taken photographs the pole would have been removed taking with it any chance of knowing what it looked like. It’s important to gather and preserve the key evidence in the case; in this case the pole. Someone needs to take photographs of the pole and the accident investigation site. Whoever is in charge of the dependent children needs to hire someone to get in there and photograph the location before the owner removes and destroys the pole. How that pole was seated in the ground may be a very important fact and pictures a sometimes worth a thousand words.

Owners don’t sit around waiting for injured people to complete their investigation. Owners need to get busy cleaning up the mess to make sure someone else isn’t injured or killed. Justice waits for no one.

So act, don’t sit around wondering. If you know Andrew Clark’s guardian tell them to get some legal advice and quickly; their future may depend upon it.

Originally posted at InjuryBoard by Steve Lombardi

Iowa Workers Compensation: Single car accidents where the working driver is killed

Steve Lombardi — Wed, 15 Apr 2009 23:33:00 GMT

Normally we think in terms of car accidents being about liability against another driver. But when a driver falls asleep at the wheel or for whatever reason loses control of a company owned vehicle or even their own vehicle in some instances; crashes, rolls and dies, the dependents may still be entitled to receive Iowa workers’ compensation benefits. This is true even when the driver is the negligent party or the party at fault.

In the instance of the I-35 crash I discussed yesterday, I haven’t any further information about this situation than what you are now reading and I’m not implying Mr. Buckner has a widow or minor dependent children or that he was working; but his story brings this to mind when I read about it. Here is the news item from Radio Iowa about this single driver collision.

Matthew Buckner was driving his Northbound on 315^th St. when he lost control of the van he was driving approximately 100 yards north of the Highway 34 intersection. He entered the east ditch and rolled several times before coming to rest on its side trapping Mr. Buckner inside. He was freed by mechanical extrication and was taken to Creighton Medical Center in Omaha, dying later that morning.

He was driving a 1989 GMC van. Under Iowa law, if he had dependents they should be entitled to workers’ compensation benefits; assuming that at the time of the collision the driver was working.

Originally posted at InjuryBoard by Steve Lombardi

Iowa Workers' Compensation: The Right to Chose the Treating Doctor, It's about dignity and respect for others

Steve Lombardi — Fri, 06 Mar 2009 13:54:00 GMT

Iowa Workers Compensation – Sixteen tons, what do you get… Saint Peter don't you call me 'cause I can't go … I owe my soul to the company store…

The bill before the Iowa Legislature that would grant workers the right to choose their own treating physician isn’t about jobs so much as it’s about respect for another human being and their right to control their own body and what is going to happen to it.

When a worker in Iowa is hurt on the job and needs medical care, it’s covered under the employer’s workers’ compensation insurance. One of the initial decisions is to choose a treating physician. Under Iowa’s workers’ compensation law it is the employer that has the right to choose the treating physicians. So long as what that physician does is “reasonable” the employer can continue to direct the medical care.

But choosing a treating physician really isn’t about what labor backs or employer’s bottom line.

To those not involved with the Iowa workers’ compensation system it may seem like not that big of deal but it is to someone needing surgery. The moment you realize surgery is going to be required that decision becomes the watershed of how you may live the rest of your life. In selecting the physician the employer also selects the anesthesiologist, the surgical team and the hospital. That’s about as un-American as you can get. It’s about as far removed from the Bill of Rights as China is from allowing criticism of corrupt government officials taking bribes and letting dairy producers add melamine to infant formula.

Doctor’s know who has the right to choose them and the doctors can’t help but cozy up to the insurance companies with their opinions. Doctors that are thought by the insurance industry to be “too liberal” are in most instances simply professionals that care deeply for their patients. Those doctors will often times exercise discretion in favor of the patient; rather than what the insurance company wants them to do. The doctors who put marketing ahead of patient care will always cow-tow to the wishes of the insurance adjuster and the case mis-managers. These doctors most workers know as the company doctor because they associate them with the company. This part of Iowa’s workers compensation system reminds me of the town described in the Tennessee Ernie Ford song, Sixteen Tons. More on that in a minute.

A doctor pandering to the insurance industry isn’t anything new and wouldn’t shock anyone. But consider for a moment that the “insurance industry” isn’t just a big company with educated people running the ship. Insurance adjusters may or may not have a college education. Insurance adjusters aren’t doctors. They don’t hold a medical degree. If the adjuster does have an education that education, or lack thereof, may or may not include subjects like anatomy, physiology, psychology and other subjects that prepare them to understand how to make decisions about medical care. It’s not like that pimply faced kid just out of business school knows anything about medicine. You would think the doctor controls medical care decisions but he/she does not. In practice the adjuster isn’t likely to just go along with the doctor. In my 28 years of practicing workers’ compensation law, the adjuster micro-manages, second guesses and overrides the doctor’s advice. Essentially what happens is the adjuster gets to practice medicine by substituting his or her own judgment for that of the doctors. Yes you can do that test; no you can’t do this one. Yes you can perform and X-ray but no to the CT scan or MRI. Surgery? Why now? Let’s try conservative treatment first and see if a miracle happens. To hell with the idea of permanent nerve damage in the spine; stay the course, no surgery.

Consider for a moment that you are the injured worker. The doctor, that you didn’t select and who really doesn’t even like you has made it clear from the beginning he thinks your just another injured worker trying to get rich off of workers compensation benefits. (The concept of getting rich off of w.c. benefits is just a popular myth. Remember no one every got rich off of $200.00 a week when the bills are $1,500.00 per month.) The doctor ignores most of what you say, mischaracterizes what you do say and ignores 90% of the questions you ask. You get the picture there isn’t a lot of love in the exam room. So here you are with this doctor now wanting your approval to cut into your back, down to the spine and then with hammer and chisel remove bone spurs and a ruptured disc. If he screws up you’ll live the remainder of your life confined to a wheel chair if lucky, if not so lucky lying in bed or a coffin.

So who selected this surgeon and what made him so qualified? It’s not like anyone gave you the doctor’s credentials and asked you what you think; quite the opposite. You’re pretty much told it’s none of your business, just be quiet and answer his questions. Most of the time there is a high priced spy, called a case manager, hired by the insurance company, who tells the doctor what’s good for the patient and what the insurance company will tolerate to authorize. She’s probably there looking not too happy that surgery is being recommended. At this moment the doctor just wants you to okay him cutting on you.

Which brings me back to the song Sixteen Tons. All you can think of is, “Saint Peter don't you call me 'cause I can't go, I owe my soul to the company store.” Sixteen Tons sold 20 million copies. Twenty million people knew enough about the company doctor to realize he shouldn’t be cutting into their spine without having first been chosen by the patient whose back was about to be cut on. A choice? Or a sensibly dignifed right? Choose your version from YouTube and then sing along, … another day older and we’re deeper in debt….

Tennessee Ernie Ford – 1956 – 20 million copies sold.

http://www.youtube.com/watch?v=Joo90ZWrUkU

SIXTEEN TONS, TENNESSEE ERNIE FORD

Some people say a man is made outta mud
A poor man's made outta muscle and blood
Muscle and blood and skin and bones
A mind that's a-weak and a back that's strong

You load sixteen tons, what do you get
Another day older and deeper in debt
Saint Peter don't you call me 'cause I can't go
I owe my soul to the company store

I was born one mornin' when the sun didn't shine
I picked up my shovel and I walked to the mine
I loaded sixteen tons of number nine coal
And the straw boss said "Well, a-bless my soul"

You load sixteen tons, what do you get
Another day older and deeper in debt
Saint Peter don't you call me 'cause I can't go
I owe my soul to the company store

I was born one mornin', it was drizzlin' rain
Fightin' and trouble are my middle name
I was raised in the canebrake by an ol' mama lion
Cain't no-a high-toned woman make me walk the line

You load sixteen tons, what do you get
Another day older and deeper in debt
Saint Peter don't you call me 'cause I can't go
I owe my soul to the company store

If you see me comin', better step aside
A lotta men didn't, a lotta men died
One fist of iron, the other of steel
If the right one don't a-get you
Then the left one will

You load sixteen tons, what do you get
Another day older and deeper in debt
Saint Peter don't you call me 'cause I can't go
I owe my soul to the company store

Originally posted at InjuryBoard by Steve Lombardi

Construction safety - Respiratory disease and it's relation to the construction industry

Megan Roth — Sat, 26 Jul 2008 00:05:00 GMT

We like to think we've come a long ways since years past when miners and other blue-collar workers were exposed to life-threatening working conditions. We've moved forward from the days when we were willing to sacrifice a worker's health for the simple purpose of fixing a sewer or gut renovating a high-rise building of luxury apartments...right?

Wrong. Even in today's technologically advanced society, construction workers (among others) are exposed to life-threatening conditions in which their personal health is placed at risk in order to provide state-of-the-art facilities for the rest of society. More than 20 million workers are exposed to hazardous agents during the demolition of contaminated buildings and work in areas where dust, bird and bat droppings are prevelant. Work in these conditions increases the risk of specific diseases including certain cancers, asbstosis, silicosis, bronchitis, and pulmonary diseases (among many others).

On a less severe but equally alarming level, many workers also develop occupational asthma.

Rates of morbidity are up amongst construction workers, many of whom are exposed to harmful work conditions which spark the onset of various chronic respiratory illnesses. As mentioned earlier, these illnesses are more likely to occur in older, unkempt buildings where dust, mildew, and mold have had the opportunity to grow over time. Similarly, respiratory illnesses set in over time. The effects on one's health occur gradually rather than immediately; yet, the fact that they aren't sudden doesn't make them any less alarming.

Construction workers involved in painting and excavation are especially at risk; the harmful chemicals in paint and other products and the thick clouds of dust that result from digging often form a thick, tar-like layer along the respiratory tract, eventually settling in the lungs.

Often times, respiratory illnesses do not set in without signals. Workers suffering such diseases often develop a cough and other cold-like symptoms. Though workers in such conditions cannot completely avoid the onset of such illnesses, they can reduce their risks by wearing protective face masks and other such devices.

Originally posted at InjuryBoard by Megan Roth

Construction safety - OSHA 10

Megan Roth — Sun, 20 Jul 2008 00:54:00 GMT

When it comes to construction safety, common sense generally isn't enough (many workers have learned this the hard way...) Thus, it's important for construction workers to be educated or trained in the field of construction safety.
In order to do so, OSHA has developed the OSHA 10, which requires workers to complete a ten-hour service and training course in the field of construction safety. The course was designed to educated workers not only of safety issues relevant to their equipment and location, but also to health concerns that may exist. The course can be completed either can be completed in various formats, most popularly online; however, regardless of whether the training takes place in a classroom, at a job-site or in a home office, the requirements for each remain the same. Each ten-hour course costs $125 and presents an introduction to OSHA and overviews of scaffolding, fall protection, cranes, trenches, and power tools (among many other issues).
Upon successful completion of the course, each worker is granted his Department of Labor OSHA construction safety and health ten-hour completion card. Workers may also elect to complete the OSHA-30 training course, which covers everything in the OSHA 10 course as well as many, many others. Though the cost of the course is higher ($295 total), the course is taught in essentially the same exact way the ten hour course is taught. Upon completion, workers receive their Department of Labor OSHA construction and safety 30-hour completion card.
Many websites (including OSHA) offer materials online for instructors teaching the course to other workers. Since the ultimate goal of these materials is to benefit the workers, they emphasize hazard identification, avoidance, and control rather than standards. The purpose of these courses is to provide practical solutions to real situations that workers can take and put to use should an issue arise at a jobsite.
As such, it is incredibly important for all workers to not only pass, but to actually learn the materials included in each course. In order to improve material retention, many websites have begun offering study guides and training manuals intended to improve worker performance and tighten security measures at jobsites around the nation.

Originally posted at InjuryBoard by Megan Roth

Construction safety - Are employee incentives as beneficial as they seem?

Megan Roth — Wed, 18 Jun 2008 00:07:22 GMT

A few days ago around on the incentive programs being offered to workers by many construction companies and affiliate organizations. The idea behind such programs is that, by providing various types of rewards for abiding by and maintaining safe environments, construction workers will make every attempt to ensure safe working conditions and decrease the risk of an accident on the work site.
However, many argue such programs are not as beneficial as they may seem. Some claim the programs are a scam - they're simply there to benefit the employees. These critics claim that accidents are unavoidable and providing incentives to avoid them is ludicrous.
Well, we agree that accidents are bound to happen (that's why they're called accidents, right?); however, we disagree that all accidents are unavoidable. We may not be able to eliminate the risk of an accident occuring, but we certainly can decrease it.
Such programs are not intended to eliminate all accidents, but rather their goal is to motivate workers to maintain as safe an environment as possible in order to lessen the odds of an accident occuring.
Yes, such programs cost money. We know many companies and other organizations spend out of their own pocket to offer these incentives; however, the benefits of such far outweigh the risks. In an attempt to not be idealistic, I'll put it out there: employers offer these benefits as a means of saving money; however, these programs also work in such a manner they are essentially responsible for saving lives. The program builds awareness and, ultimately, it instills aspects of safety into the brains of every worker.

Originally posted at InjuryBoard by Megan Roth

Electrolux Iowa Plant Closings, Exporting America’s Middle Class

Steve Lombardi — Wed, 28 Oct 2009 04:15:45 GMT

Can a community that has no manufacturing base sustain a middle class?

Electrolux is closing its Iowa operations and with those closings taking 850 jobs to a place called Juarez, Mexico. On the news tonight they showed workers upset over the introduction of a security company checking lunch pails for probably weapons. That’s a good thing really. Because if I worked there for 20 years and just had the rug pulled out from under me I might consider going to work with a loaded revolver. So the rest of you workers calm down about the security and focus on the real problem, Congressmen and Congresswomen taking campaign contributions from companies that afterwards ship jobs overseas or out of this country. What the workers need to do is demand an answer, the real answer, as to why these jobs are being shipped out of this country. It seems our Congress is either powerless, mindless or bought and paid for when it comes to shipping jobs outside of this country.

“Politics is a pendulum whose swings between anarchy and tyranny are fueled by perpetually rejuvenated illusions.” Albert Einstein

The Schedule: Electrolux in Jefferson, Iowa is moving 850 jobs to Mexico by 2011. The Electrolux Major Appliances North America operations are consolidating its North American laundry manufacturing into one facility in Juarez, Mexico. The Webster City operation will close in the first quarter of 2011 and the Jefferson, Iowa satellite facility in the fourth quarter of 2010.

Here is a quote from the MSNBC story Electrolux To Move 850 Jobs to Mexico:

“This was a difficult but necessary decision,” said Frank Wagner, Vice President, Operations, Electrolux Major Appliances North America. “Electrolux is aware of the impact this decision will have on our employees and their communities. The company will be taking steps to assist employees with this difficult transition and will work with local and state officials to ensure that all training resources are made available to our employees.”

That’s an understatement and no Frank I don’t think it was a difficult and necessary decision. Electrolux just announced its 3rd quarter profit showed a 93% rise even though in general there is weak demand for appliances. Electrolux 3Q profit rises 93 percent, October 26, 2009 The most difficult part of this decision is how all of you get out of town with your skin intact. You just took 450 jobs in Spain last week and sent them where? And that’s the reason for the security at the plant. Your brain tells you this isn’t the right thing to do but for whatever financial reason 850 Iowans get shafted and lose their jobs. They give you years of their sweat, blood and tears and what are you giving them in return. Nada.

I see Kelly Ripma is your spokesperson. How about if we not just boycott what you make but also what she sells. As she says in the ad for winning a double wall oven, that sounds like the way to “plan the perfect party.” Like I said, no wonder you have beefed up the plant security.

Do you think we don’t know this game? Did you forget that Newton, Iowa most recently lost over 2,000 jobs when Maytag closed in Newton? (Whirlpool Corp.) Electrolux cities told to market plant sites, Des Moines Register, October 25, 2009. The company says it’s doing very well financially so why the move? What gives Mr. Wagner? Maybe you’re not the guy to ask. Perhaps it’s the CEO Hans Straberg sitting comfortably in some corporate office planning his next bonus.

Electrolux is a world leading international appliance company. We are a part in the daily life of hundreds of millions of families around the world.

"Each year, some 40 million consumers in more than 150 countries choose our products, such as cookers and cooktops, ovens, fridges and freezers, dishwashers, washing machines, tumble dryers, room air conditioners and vacuum cleaners. That translates to two products bought from us every second, every day of the year." Electrolux Corporate Website quote.

From your most recent press release this is all about margins and martini's with you CEOs. That and your next bonus check. How much are the board’s big fat bonuses for 2009 going to be? It’s not longer about the people in the community, the workers that build the products or their families. It’s all about you.

And corporate America wonders why this next generation shows no loyalty or work ethic?

Third quarter results clearly demonstrate our potential

26 Oct, 2009 07:51

Today I am presenting very strong results for the third quarter. We have succeeded in reaching an operating margin of more than 8%. I am very pleased that all Electrolux operations have been successful in this challenging market. Market demand continues to be weak, although the rate of decline has slowed down.

The results show that we are capable of increasing our margins. At the same time, we have to be realistic and understand that a lot of work remains before these levels are sustainable.

Almost everything went our way this quarter. Cyclical trough in commodity prices and maintained prices have been decisive for our earnings improvement. Other contributing factors are a better product mix and significant cost reductions.

Electrolux Financial Statement

If you leave off the return on equity for 2008, 2008 was a bad year for everyone; Electrolux’s ROE is over 20% on average for the period 2004 through 2007. Greed is the only thing we Iowans can see driving this decision; plain and simple it’s about greed of a few that leaves the middle class behind.

I’ve seen it since 1981 from a front row seat in Waterloo and the John Deere employees, the American middle class is being dismantled. It’s being shipped overseas and down south. If a country doesn’t have manufacturing jobs they soon don’t have a middle class and class warfare can’t be far behind. If you and the other plant closing CEO’s are wondering why there are so many people running around this country wanting to wage war over the right to carry firearms, just stop and consider the bigger picture from the viewpoint of a family of five just trying to put food on the table. All they can think of is where Sam Colt is when you need him?

U.S. Chamber of Communist Commerce and the Un-American Tort Reform Association Sit on the Sidelines Saying Nothing - Perhaps they speak only in Spanish and Chinese

My advice to Iowans is to buy American-made goods. Don't buy cars, appliances or any other products that aren't made in America by the American worker. Why don’t we have our own website for American made goods?

And once again I ask, why is the American Tort Reform Association and the U.S. Chamber of Commerce so quiet? Why don't they have anything to say about the loss of American jobs? Isn't it the United States Chamber of Commerce? Or is this really a communist-like organization interested only in the wealth of a few who own and run companies out of America? Your two organizations are truly the great illusionists. The comment section is below...

http://www.youtube.com/watch?v=oZ7JV0B1eAY

Originally posted at InjuryBoard by Steve Lombardi

Construction Injuries: Let the process begin

Megan Roth — Thu, 16 Apr 2009 15:28:00 GMT

It’s somewhat ironic how the economy is crumbling around us and buildings continue to go up (each one higher than the next, it seems).

It’s true – the construction industry has exploded and, though it has experienced some cuts in result of economic woes, it’s currently one of the top job providers in the U.S. Yet, as fortunate as this is, it also has its downfalls – number one being the fact that, as the industry develops, so does the list of lawsuits related to it.

Construction is an inherently risky business and is actually one of the three most dangerous occupations in the U.S. (as well as the fifth highest industry for workers’ compensation claims). Regardless of how ‘safe’ a site is, the risk for accidents are always there (thus putting workers at increased risks for injury).

In fact, according to OSHA, over 1000 construction workers will die (and many more will be incapacitated from work-related incidents that could and should have been avoided).

“It’s a matter of training, knowing and doing…of supervision being provided with the proper tools to do the job,” a New York attorney stated.

Yet, many preventable accidents will occur and have long-term consequences (both physically and financially) on the injured parties; in addition to the extensive injuries that can be incurred, some will suffer permanent work loss, which can be detrimental to both your and your family’s well-being.

And though injuries occurring on a construction site often qualify parties for workers’ compensation, the monetary award generally doesn’t cover the entire cost of the accident (as the financial burdens are often quite high and can actually exceed the amount allotted in a workers’ comp claim).

What’s worse? Such cases often take weeks, months – even years – to get started. Simply preparing the claim is quite time-consuming and, even once that’s completed, legal staff for both parties will have to analyze the claim before negotiations begin.

Your lawyer will deal with all the legal issues, of course; however, you (the victim) must keep yourself afloat financially while he/she works through the logistics.

If you are unable to work (as advised by a doctor), you should be entitled to some form of temporary total disability benefits (there are laws and provisions governing what amount this will be). From there, your disability coverage and long-term benefits will be determined by the legal parties and governing agent involved.

Even when it seems blatantly obvious the construction company is liable, their representation may attempt to defend such claims, making trials lengthy and drawn-out; thus, it’s often necessary to reach a presettlement agreement before the case even begins. After all, this may be your only option for even short-term financial survival (as medical care, loss of work and prescription drugs combined can build huge piles of debt in just a few days).

Originally posted at InjuryBoard by Megan Roth

Iowa Workers' Compensation: Released back to work, then laid off, what do I do?

Steve Lombardi — Sat, 04 Apr 2009 09:50:00 GMT

I answer questions on another website and this question was recently posed and the economy being what it is, I thought a broader audience might appreciate the advice.

Question: If a person has a work comp injury with restrictions can they be laid off of work?

Answer: The answer is sometimes, yes and sometimes no. The answer all depends on how the doctor released the employee, with or without restrictions.

This question demonstrates why a release to return to work should be in writing and clearly set forth any restrictions on activity levels. Written releases of weight, time, push, pull, climbing, squatting, heights limits, to name a few are so very important and without the restrictions no one, especially the employer know how to treat the employee’s performance. If the employer is left with just listening to the employee about what they can and can not do, then doubts develop about the employee’s motivation and the employee is playing right into the prejudice that already exists in the workers’ compensation system.

A person who has been injured and off work (with a doctor’s excuse) due to a work related injury is entitled to receive workers’ compensation benefits until one of three things happen. First, this period is known as the healing period and it runs up to the time when the employee returns to work, is released to return to work or reaches maximum medical improvement, which first occurs. Once released the employer must accept the employee. (I refer to these periods as RTW, RRTW or MMI.) Once released the employee must show up for work. Healing periods begin with the first date of disability and end with the release to return to work.

Restricted releases to return to work mean the employee is released for a trial of work. A trial of work is one in which the doctor wishes to see if the employee can be progressively reintroduced to their old job. If the employer accommodates those restrictions then all is well, but if not then the employee is back on healing period until the time when they either return to work or reach maximum medical improvement.

When during the healing period the employer has had to lay workers off due to a slow economy like the rest of the work force the employee must weather the slow down using unemployment benefits, not workers’ compensation benefits. But if the doctor’s excuse was for light duty (a release with restrictions) and employer is not able to accommodate those restrictions then the employee would be back on w.c. benefits as not yet healed. It’s simply a matter of the restrictions being in writing, the type of release being light duty and the employer not being able to accommodate the restricted work.

So if you have the right release and the employer doesn’t accommodate it then you should still receive workers’ compensation benefits under Iowa law.

If after being released to return to work you have a dispute with your employer about taking you back don’t get mad, hire a lawyer to assist you. Attitudes can be a good thing and bad all at the same time. I know you’re scared about being able to pay the bills and the kids need to eat, but keep your head about you and think. The Iowa Industrial Commission, otherwise known as Iowa Workforce Development (God I hate that name, what’s wrong with saying Industrial Commission?) is here to resolve disputes. There are times that even workers’ who act heroically are denied benefits.

August 26, 2008, Little Rock, Arkansas – McDonald’s Employee rescues customer who is being attacked by another customer, is shot and his employer argues he was not advancing the interests of the employer. The employee incurred over $300,000 in medical expenses. The employee is Nigel Haskett of Little Rock, Arkansas. He’s no longer working for McDonalds – Go figure!

http://www.youtube.com/watch?v=PhsmQo9Vrjw&feature=related

Iowa employees need not be too concerned with this case on YouTube since there is another case tried by law firm in Cedar Rapids, Iowa where a convenience store employee (robbery) who was held up at gun point was allowed workers’ compensation benefits for a psychiatric fear disorder brought about as a result of the fear of having a gun pointed at them. So don’t despair, simply hire an attorney who knows the law.

The findings of fact are as follows:

Toby Brown is a 33-year-old high school graduate who took an additional one-year course at Hamilton Business College, obtaining a diploma in business administration. He served in the marines and also went to a six-month truck-driving course at Kirkwood College. He drove a truck coast-to-coast for approximately six months, but left this type of employment because of the need to drive in bad weather and the problems the large trucks had when there was a black ice problem. Toby described other employment he had up to the time he began working for the defendant employer on January 29, 1990, as a night assistant at Quik Trip. Quik Trip is a gas and grocery convenience store operating in several states. He worked primarily at the checkout register. He eventually was promoted to second assistant, a position he had held for over seven years at the time of hearing.

The events that led to this case are not seriously disputed. On January 18, 1994, while he was working the overnight shift, a shooting occurred in which a customer was shot in the upper thigh. Toby called the police and eventually had to go to the police station to identify pictures. Eventually he had to testify in a court proceeding on behalf of one of the people involved. The woman who was shot eventually sued Quik Trip. Toby acknowledged that the offense bothered him. There was blood everywhere – on the floor and merchandise - and he had to clean it up. He was worried about AIDS, but did wear gloves.

A second event occurred at a different Quik Trip store on January 24, 1994. While Toby was working with products, he was grabbed by the arm by a person and an object was stuck in his back. The robber requested Toby to turn over all the money. Toby thought it was a gun in his back, but never saw the object. The robber ordered Toby to get down before he blew his head off. Toby described how the robbery affected him. At the time of the robbery he was worried about his kids and about getting shot. He did not finish his shift.

The conclusions of law found the claim to be compensable.

CONCLUSIONS OF LAW

The claimant has the burden of proving by a preponderance of the evidence that the injury is a proximate cause of the disability on which the claim is based. A cause is proximate if it is a substantial factor in bringing about the result; it need not be the only cause. A preponderance of the evidence exists when the causal connection is probable rather than merely possible. Blacksmith v. All-American, Inc., 290 N.W.2d 348 (Iowa 1980); Holmes v. Bruce Motor Freight, Inc., 215 N.W.2d 296 (Iowa 1974).

The question of causal connection is essentially within the domain of expert testimony. The expert medical evidence must be considered with all other evidence introduced bearing on the causal connection between the injury and the disability. The weight to be given to any expert opinion is determined by the finder of fact and may be affected by the accuracy of the facts relied upon by the expert as well as other surrounding circumstances. The expert opinion may be accepted or rejected, in whole or in part. Sondag v. Ferris Hardware, 220 N.W.2d 903 (Iowa 1974); Anderson v. Oscar Mayer & Co., 217 N.W.2d 531 (Iowa 1974); Bodish v. Fischer, Inc., 257 Iowa 516, 133 N.W.2d 867 (1965).

Since »claimant has an impairment to the body as a whole, an industrial disability has been sustained. Industrial disability was defined in Diederich v. Tri-City Ry. Co., 219 Iowa 587, 258 N.W.2d 899 (1935) as follows: "It is therefore plain that the legislature intended the term 'disability' to mean 'industrial disability' or loss of earning capacity and not a mere 'functional disability' to be computed in the terms of percentages of the total physical and mental ability of a normal man."

The Order included payment of permanent partial disability benefits in the amount of 125 weeks.

Originally posted at InjuryBoard by Steve Lombardi