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

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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There are several affirmative defenses that may be raised in regard to a tort claim. An affirmative defense is a defense that may be raised by a defendant that constitutes a complete bar to a claim. One of those affirmative defenses is that of the statute of limitations. Every state has set forth a statute of limitations for virtually every type of civil claim, whether it be a tort claim, contract claim, or otherwise. If the claim is not asserted within the time allowed by that statute, then the claim is deemed to be barred. The assertion of a claim is accomplished in most states by actually filing a lawsuit at the courthouse. Some states require actual service of the suit papers upon the defendant before the statute of limitations runs.

Another defense that may be asserted in a tort case is that of assumption of the risk. Assumption of the risk arises when the plaintiff understands the nature of the risk involved and voluntarily
assumes that risk.

Example: If you decide to go out to the supermarket during the middle of a very bad ice storm, recognizing that the roads and walkways are not navigable, and while walking from your car to the store, you slip and fall, then you probably have assumed the risk of an injury. You knew that there was a risk associated with going out during those weather conditions and you voluntarily chose to accept that risk.

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Different states have different ways of how they deal with negligence claims. Some of them acknowledge the concept of comparative negligence, while other states are known as contributory negligence jurisdictions. In a comparative negligence jurisdiction, the negligence may be compared between the parties. For instance, going back to the red light example, if you happened to be intoxicated and laying in the middle of the intersection when you were struck, then there obviously would be some negligence on your part. The jury would be called upon to compare the different levels of negligence.

In that example, the jury might conclude that the driver was 50% negligent and you were also 50% negligent. If the jury then determined that your total damages were $100,000, you would only receive $50,000, because you were 50% negligent.

In a contributory negligence jurisdiction there is no comparison of negligence. This means that if you were negligent by 1%, and that negligence was a cause of your damage, then your claim is barred and you receive nothing. Contributory negligence is a principle derived from the common law that is still recognized in some states. It is indeed a very harsh principle of law and in many instances is unfair to people who are probably entitled to recover something for their damages, but may not be entitled to 100% compensation.
 

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Another important principle in liability in a tort action is joint and several liability. Under the principle of joint and several liability, each defendant is 100% liable for the judgment that is rendered. This principle has been under a good deal of attack lately because it can create circumstances wherein a defendant can wind up paying more than his or her fair share of any judgment, especially if the other defendant cannot afford to pay.

Joint and several liability is something that is well ingrained into our legal system. The rationale behind it is to make sure that the plaintiff can obtain full recovery for whatever judgment is entered. It then becomes the burden of the defendants against whom the judgment has been entered to fight among themselves as to any eventual sharing of that liability.
 

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The final element of any tort claim that must be established is damages. Damages may be thought of as the injury incurred. The injury may come in the form of personal injury such as a broken arm or leg, pain and suffering, emotional distress, medical expenses, lost wages, or permanent disability. Pain and suffering is an elusive concept. The words themselves best define the concept. When you are physically injured, it would be expected that you would experience some pain, anguish, or emotional stress. Normally, a jury in an injury case is called upon to award a monetary amount for that pain and suffering along with the other damages that are claimed.
 

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Aside from the types of claims mentioned previously, there are several intentional torts that can be asserted. Those intentional torts consist of such claims as assault and battery, conversion, defamation, false imprisonment, fraud, malicious prosecution, invasion of privacy, trespass, and the intentional infliction of emotional distress. All these claims have specific elements that must be met and proved in order for a plaintiff to prevail.

A battery is simply an unwanted touching of one person by another. Conversion is the taking of a person’s property without that person’s consent. (Conversion in the civil system is similar to larceny in the criminal system.)

Defamation can come in either written (libel) or oral (slander) form and consists of making injurious statements about a person that are untrue. If the injurious statements involve an imputation of a criminal offense, involve moral turpitude, impute a contagious disease, impute unfitness to perform the duties of office, or include words that prejudice a person in his or her profession or trade, then they may be referred to as being defamatory per se.

If the alleged statement is not defamatory per se, then the plaintiff may have to prove what are called special damages in order to recover against the defendant. Special damages would come in the form of out-of-pocket expenses incurred as a result of those defamatory statements.

Example: If you are a surgeon and David calls you a butcher, that is a statement that is defamatory per se. You could assert a defamation claim against David even though you may not have incurred any special damages (any out-of-pocket expense as a result of the making of that statement).

Keep in mind that truth is always a complete defense to a defamation claim.

If, on the other hand, you are unemployed and Sarah calls you a crook, and as a result of making that comment you incur so much emotional distress that you seek psychiatric help, you may have a basis for a defamation claim against Sarah. Even though the comment made is not defamatory per se, the fact that you have incurred medical expenses as a result of Sarah making the comment about you satisfies the special damages requirement. It gives you the basis for a defamation claim against Sarah.

The truth is always a complete defense to a defamation claim.

Some statements, although defamatory, are protected by a qualified or absolute privilege. For instance, a statement made by an employer about an employee to a new prospective employer may be governed by a qualified privilege. The idea is to allow employers to freely exchange information about employees. What that means is that the employee in a defamation action against the former employer may have to claim and prove that there actually was some malice in the statements that were made.

An absolute privilege would be one that is an absolute bar to a claim for defamation. For instance, comments made in the course of a judicial proceeding are generally governed by such a privilege. The idea is to allow the parties to freely exchange comments during such a proceeding.

Claims of false imprisonment and malicious prosecution arise in the context of a person improperly restraining another person or initiating a criminal prosecution that is subsequently found to be unjustified.

Fraud is the intentional misrepresentation of a material fact made for the purpose of inducing reliance and that does induce reliance to the detriment or damage of the plaintiff. Fraud is a very difficult thing to prove. Unlike most civil claims that must be proven simply by a preponderance of the evidence or what is referred to as the greater weight of the evidence, fraud claims must be proved by clear and convincing evidence, which is a much higher standard and much more difficult to prove. The reason for the higher standard of proof in fraud claims is that the law recognizes fraud as an offense involving surreptitious behavior that may be subject to different interpretations. It is therefore felt that the plaintiff should have a more difficult burden of proof in these types of claims than would apply in the run-of-the-mill tort claims that may be asserted.

Another intentional tort is called the intentional infliction of emotional distress. To pursue such a claim, you must prove that the conduct of the defendant was intentional and outrageous, that the conduct caused emotional distress, and that the emotional distress was severe. It is often difficult to meet all of these elements.
 

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Strict liability means that the defendant is liable for his or her conduct in certain instances, even without a showing of actual negligence, if that conduct was a cause of injury to the plaintiff. Strict liability normally only arises in regard to activities that are extremely dangerous. For instance, if you are operating a quarry and in the course of blasting with dynamite you damage the home of one of your neighbors, that neighbor may not have to prove that there was any negligence on your part in the blasting operation, but simply has to prove that the blasting was the cause of damage to his or her home. In that circumstance, the party conducting the blasting may be strictly liable for any damage that results from that dangerous activity.
 

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A significant concept within tort law is vicarious liability. The concept of vicarious liability means a principal may be liable for the conduct or the misconduct of his or her agents. That principal/agent relationship arises in the employment context between an employer and an employee. It may also arise in other contexts involving contractors. From a plaintiff’s point of view, the concept of vicarious liability is important because it typically is that legal concept that allows for complete recovery of damages. For instance, if you are rear-ended by a truck driven by an employee of the ABC Company, your attorney would file the claim against not only the driver, but also the employer. If suit was filed only against the driver and it turns out that there was no insurance covering that vehicle, then whatever judgment you got against the driver may be uncollectible simply because the driver may not have the financial resources to pay the judgment. If, however, you get the judgment also against the employer, then that employer probably would have the financial resources either in the form of insurance coverage or otherwise to satisfy the judgment.

The employer in that case is liable for the conduct of the employee, assuming that the employee was acting within the scope of his or her employment. If, on the other hand, the employee was on a personal mission while operating a company vehicle and the employer had no knowledge of it and had not consented to it, then there may be no vicarious liability. Perhaps the employee was acting on his or her own and was not doing anything on behalf of the employer at the time of the collision.

The concept of vicarious liability has been the subject of a good deal of litigation over the years.

Example: Suppose an insurance salesman comes into your home to sell you insurance on behalf of the XYZ Company. He presents to you his business card along with all the brochures of the XYZ Company. He convinces you that based upon the extensive advertising of that Company and because of the well recognized name that this is a very reputable company. Based on that you purchase a policy of insurance and tender a check in a substantial amount. If the salesman then
absconds with the money, is the XYZ Company liable for your loss?

They probably are even though that salesman may not be a direct employee of the company. The salesman in that instance may be an independent contractor, but the XYZ Company is probably still liable because it is the one who gave that salesman all the trappings of authenticity, gave him the opportunity to engage in his fraudulent behavior, and essentially set the whole process in motion through the use of its company name and company advertising.
 

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Literally, the term res ipsa loquitur means the thing speaks for itself. Res ipsa loquitur is a rule of evidence that states that a jury may conclude that a defendant is negligent if:

* the plaintiff has been injured as a result of an instrumentality (some tool or object) that is in the exclusive control of that defendant;

* the defendant has or should have exclusive knowledge of the way that instrumentality was used; and,

* the injury is one that would not normally have occurred if the instrument had been used properly.

Example: Suppose you are walking down the street and a dresser drawer falls on your head. It so happens that the dresser drawer came from the apartment window above. It had been placed there by the tenant who was doing some spring cleaning and the tenant accidentally bumped the dresser drawer. Have the elements of res ipsa loquitur been met in that instance?

They probably have been, in that the dresser drawer was in the exclusive control of the defendant, the defendant had exclusive knowledge as to how the dresser drawer was used, and finally the injury is one that would not normally have occurred if the dresser drawer had been used properly. As long as you can prove those basic elements, you probably would be entitled to recover money against that tenant for her negligence.

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You have probably heard of the term attractive nuisance. That is a concept of negligence that is recognized in many states. An attractive nuisance is an object that by its very location and configuration is attractive and also dangerous to children. If the owner of that object allows it to remain accessible to children knowing that it will attract them and knowing that they probably will be injured if they come in contact with it, that may be a basis for a negligence claim against the owner of that object.
 

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