Worker’s Compensation: On the Job Injuries

Over a hundred years ago, the United States worker’s compensation laws were codified to help injured workers, regardless of fault in what was known as the “Grand Bargain.” This draconian system was implemented to help victims of workplace injuries and has evolved into the modern day gridding system that applies assigned values for designated injuries. The system is not perfect and often unfairly treats permanent injuries.

The plus, is the statutory 66% wage loss reimbursement and medical expense benefit, but no real compensation for pain and suffering. This deal was intended to simplify the claims of injured workers despite the issue of fault, as many workers might be to blame for their own injuries.

Nonetheless, there are many victims who are not responsible for their injuries, but they must still deal with their respective systems to get what they can. The program must provide significant benefits or substitute systems must provide a “Reasonable Amount, and according to a reasonable and definite scale, by way of compensation for the loss of earning power incurred in the common enterprise.” New York Central Railroad v. While, 243 US 188, 37 S. Ct. 247, 61 L. ed 667 (1917).

This created the modern system of worker’s compensation for on-the-job injuries. It is important to note that this system is not a truly fair system for injury victims as compared to the Constitutional right to a jury trial afforded to non on-the-job injuries as we see in 3rd party accident claims where regulations do not control how persons are compensated. This is known as the “exclusive remedy.”

An injured employee is completely barred from suing anyone that is under the umbrella of the employer. For example, a construction worker who might injure himself on the job during a building framing, can’t sue his framing contractor if he was negligent in the safety of the work site. Just the same, that employee is prohibited from suing the plumbers or welders who may have left pipe in a hidden place causing someone to fall or a welder who failed to secure a steel staircase. This all falls under the worker’s compensation system where thousands of accidents are filed every day.

Only four states in the U.S. have government run systems, eighteen have a hybrid state funded program, and the rest, including Nevada, are privately run by insurance companies; thus, insurance companies operate with premiums paid by employers, and the for-profit model is in effect. Given this, it is imperative a claimant get representation to navigate the process, including initial filing, doctor selection, and appeals. The right to select your doctor is limited in Nevada, and attorneys may know the doctors on the selection list who are fair. Given the PPD ratings are designed to be objective, there are many ways in which a subjective reading can play a major role in the outcome. “Disability benefits can be paid for the duration of disability up to the life of the worker or benefits may be capped either by age, duration of receipt, or total amount of benefits received.”

In 1979, Congress passed the Occupational Safety and Health Act which changed the system drastically. “Congress established that every employer has an affirmative responsibility to provide a safe workplace to its workers, thus reinforcing the basic tenet of workers’ compensation that employers are responsible for the injuries, illnesses, and deaths of their employees, regardless of fault.” With OSHA, the goal was to keep safety standards at work in hopes in would alleviate the majority of employer caused work place injuries. Obviously, it did not, but standards are now in place that have decreased accidents since the inception.

Today, nearly all folks, whether large or small injuries must go through the program to receive compensation. The bulk of such cases are relatively small payouts. A study in Florida showed that 96% claims are under $5,000 (2018), thus insurance companies are making millions on the system, and it is effectively making corporations wealthy, while leaving victims without adequate compensation.

Ida M. Ybarra, Esq.
Workers’ Compensation Specialist, Ida M. Ybarra, Esq.

Florida, like Nevada, is one of the privatized insurance states. From the black lung cases in coal mines, to the lung cancer from casino smoke, environmental hazards of specific jobs can be life ending disasters. Federal laws protect and provide certain coverages for Federal employees like the Maritime workers, Military, and Federal Post office employees; Under FECA, the Federal Employee’s Compensation Act, such coverage is much more statutory in nature, and often not practice areas most State worker’s compensation attorneys venture into. Perhaps because there is not a lot of gray area in the Federal arena. For example, a disability rating under FECA for a lost leg is worth 288 weeks’ of compensation. A lost eye is 160 weeks’ of compensation. Very cut and dry formulas—and often unfair.

In the COVID-19 pandemic timeframe, cases are very hard to prove given rampant community spread, and an inability to pinpoint infection. Due to this it can complicate the evidentiary process of proving up the origin.

States can help mandate Covid presumption via rules and regulations to help define the process by which COVID cases are determined, but only a handful of Nevada attorneys may be handling such cases which must be very fact specific.

Benson and Bingham has a division of workers compensation lawyers in Nevada specifically devoted to handling these cases.

Contact Benson & Bingham Accident Injury Lawyers, LLC.

Benson & Bingham
626 S 10th St
Las Vegas, NV 89101

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