Northern Virginia Personal Injury Lawyer Blog : Northern Virginia Injury Lawyer & Attorney : Brien Roche Law Firm : Medical Malpractice, Product Liability, Car Accidents : Washington DC, North Virginia, Maryland

There also is a good bit of controversy regarding the provision of medical treatment to injured workers. Typically, the medical treatment is controlled by the employer or the employer’s insurance carrier. This means that the employee receives treatment from doctors who have been chosen by the insurance carrier or the employer. These doctors obviously know who is paying their bill and they know that the insurance carrier and the employer expect this employee to return to work at some point in time so that their financial exposure in paying wage benefits is limited. Although these doctors generally provide quality medical care for the injured employee, they have a somewhat mixed loyalty. They know that the employer and the insurance company want this employee to return to work, but they also know that it is not necessarily always in the employee’s interest to return to work too quickly or even to return to that form of work at all.

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The law relating to workers’ compensation coverage can become extremely complex when dealing with issues of occupational disease. The run-of-the-mill, on-the-job injury in which an employee falls and breaks an ankle does not involve a great deal of controversy. However, the claim of the employee who over a period of time develops, for example, carpal tunnel syndrome as a result of typing at the keyboard, is harder to classify as being a result of the employment. Different states have dealt with that issue in a variety of ways. Some states provide coverage for these types of repetitive stress injuries or exposure injuries; other states do not.

Another area of significant controversy in regard to workers’ compensation claims is compensation for emotional injuries. In some states, an employee who suffers, for example, a nervous breakdown because of emotional stress on the job may be entitled to the whole range of benefits under the workers’ compensation system. Other states have denied those types of benefits on the theory that the relationship between employment and emotional injury is simply too tenuous and therefore the employer should not be made to bear the burden of the expense associated with that type of injury.
 

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There has been a good deal of controversy over the extent to which workers’ compensation laws should provide benefits to injured employees. Many states put a cap on the amount of wage benefits that the employee can receive. In some jurisdictions the employee can receive no more than five hundred weeks of wage benefits, which is the equivalent of approximately ten years of benefits. This is to the advantage of the employer in that it puts a limitation on the employer’s or the insurer’s liability.

However, it may be a detriment to the employee if the employee is permanently disabled and cannot return to any form of work. If in fact the employee is permanently and totally disabled, then he or she may be able to extend those benefits under state law. However, proving that a worker is both permanently and totally disabled is not an easy task. As such, in many states employees are left in a situation in which they cannot return to their former employment, yet at the end of the allowable time their wage benefits are terminated.

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In the event that an employee is killed on the job, the family of that employee is entitled to death benefits. Those death benefits are wage benefits that will, at least in part, replace the loss of income as a result of the death of the employee.

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Wage benefits are calculated based upon the average weekly wage—the wages of the employee over a period of time are totaled up and then averaged. Once that average has been calculated, the employee is typically entitled to two thirds of that average weekly wage (up to a statutory ceiling).

The second form of benefit received under workers’ compensation is medical coverage. If an employee is injured on the job, he or she is entitled to reasonable and necessary hospital and medical treatment related to that injury to hopefully get him or her back on his or her feet and able to resume his or her employment. If the employee is not able to resume his or her former employment, then he or she may be entitled to rehabilitation services that will either allow him or her to return to some other form of employment or be trained in a new line of work.

A final type of compensation that the employee may be entitled to as a result of an on-the-job injury is compensation for permanent disability. Most workers’ compensation acts have created a schedule in which specific disabilities are worth a certain number of weeks of wages. For instance, a person who loses a foot may be entitled to one hundred and fifty weeks of wages over and above any other benefits that he or she may receive. A person who loses an eye on the job may be entitled to an equivalent amount of compensation. Those forms of compensation are in addition to the wage loss benefits otherwise paid and any medical expenses that have been paid.
 

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Workers’ compensation acts around the country are administered by a governmental agency for that jurisdiction. If an employee is injured on the job, he or she must report that injury to his or her employer within a designated period of time and file a written report of that injury. If the employee is forced to lose time from work or requires medical treatment, then he or she may file a claim with the administrative agency that administers workers’ compensation claims for that jurisdiction. Once a claim is filed, the employer can either contest or accept the claim.

If the employer accepts the claim, then the employer is agreeing that the employee was injured on the job, that the injury arose out of the employment, and that the employee is entitled to medical coverage and perhaps to wage benefits for the time disabled. If the employer decides to challenge the claim, there will be a hearing before an administrative law judge or a hearing officer who will then make a decision whether the claim is compensable and whether the employee should be paid wage benefits and/or medical benefits.

There has been a good bit of litigation over the years as to exactly what constitutes being an employee. Typically a person who is an independent contractor will not qualify as an employee under the workers’ compensation act. Likewise, the individual who is the owner of the business may not qualify as an employee unless he or she has expressly chosen to include him- or herself in that definition within the policy of insurance issued.

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Workers’ compensation is a form of insurance coverage that is designed to protect the working person in the event of injury. In a workers’ compensation claim the parties involved are the injured worker, his or her employer, and the employer’s workers’ compensation insurance company. Before the passage of workers’ compensation laws, a worker who was injured on the job was forced to file suit against his or her employer and potentially wait for months or even years before ever receiving any compensation for an injury.

As a result, the worker and his or her family may have had no income for an extended period of time because the worker was injured and unable to work. Further, the worker often was unable to pay for medical treatment. If the worker did eventually recover from the employer in a civil action, that award of money damages frequently came too late for the worker since by that point he or she was destitute and perhaps permanently impaired because of the lack of proper medical treatment.

As such, many states began passing workers’ compensation laws that provided a type of compromise. Under these laws, the worker did not have to prove any fault on the part of the employer when injured, but simply had to prove that he or she was on the job and that the injury arose out of his or her employment. If those two things could be proven, then the worker was entitled to receive a portion of his or her wages for the period of time disabled and further was entitled to appropriate medical treatment related to that injury.

In return for that, the employer received immunity from a civil claim brought by the employee for the injury. That is, the employee could not file a civil action against the employer. The employee’s exclusive remedy is the worker’s compensation benefits.

Every state has its own workers’ compensation law and that law can vary dramatically from state to state. The general thrust, however, of the worker’s compensation system nationwide is as stated.

In addition, there are workers’ compensation acts that operate at the federal level. Individuals employed by the federal government are covered by the Federal Employees Compensation Act. It is a workers’ compensation act that is administered by the U.S. Department of Labor. There is also another federal statute known as the Longshoremen and Harbor Worker’s Act, which technically covers longshoreman and harbor workers but includes private, nonfederal employees who are working on defense installations as well. It also covers private employees working overseas who are covered by the Defense Base Act—a type of workers’ compensation act that incorporates the Longshoremen and Harbor Workers Act.

In most states, an employee’s exclusive remedy is workers’ compensation benefits.
 

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If the injury suffered results in the death of a person, then that person’s estate may assert a wrongful death claim. A wrongful death claim occurs when the injured party, rather than having simply suffered personal injury, has actually died as a result of the misconduct of the defendant. A wrongful death claim may be based upon a negligence theory, a breach of warranty theory, or an intentional tort theory, such as assault and battery.

Wrongful death claims are a fairly recent phenomenon. Common law did not recognize wrongful death claims, on the theory that once a person had died, there was no amount of money that could compensate for the loss. As such, a person’s claim died with him or her. However, over the years, the state legislatures have come to recognize that even though death may bring an end to the suffering and damages incurred by the decedent, there may be persons left behind who have been damaged and may continue to be damaged in the future as a result of the passing of the decedent.

Every state has its own wrongful death statute that defines exactly what damages are recoverable under the wrongful death act. Typically the damages recoverable are damages consisting of solace and grief experienced by the survivors, loss of earnings suffered by the dependents from the decedent’s subsequent inability to generate income, any medical expenses incurred by the decedent, and funeral expenses.

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Several states still recognize various types of immunities. That immunity may come in the form of sovereign immunity, charitable immunity, or family immunity. Sovereign immunity is based upon the concept that the king cannot be sued. In the United States that means the sovereign or the government cannot be sued. Many jurisdictions have waived that immunity either in whole or in part. If the local or state governmental entity that you are planning on suing is deemed by state law to be immune from tort claims, then you may not be able to sue that entity at all unless it expressly chooses to waive its immunity. Many governmental entities by means of state law have expressly waived their immunity either entirely or have allowed claims to be asserted against them up to certain dollar amounts. (This varies from state to state.)

Charitable immunity is a doctrine that applies in many states to organizations that are truly charitable. A charitable organization is generally considered to be one that fulfills a strictly charitable function and does not make any attempt to collect its debts. Charitable organizations may be immune from tort claims. For instance, if you were injured on the premises of the Red Cross because of some negligence on their part, depending on the law in that particular state, the Red Cross may have the defense of charitable immunity to your claim because they truly are a charitable organization.

There are certain states that still recognize elements of family immunity. That is, tort claims may not be asserted against parents or siblings for certain types of behavior.

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