Category Archives: third party claims

Mold on the job: not just workers’ compensation

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Mold doesn’t have to be this obvious to be harmful in the workplace.

Teaching is not thought of as a hazardous job, but 120 teachers in Stamford, Connecticut have filed workers compensation claims due to mold exposure that effects half of the buildings in their district.

Mold is a relatively common hazard for white collar employees. When mold infests a building, it is common to have many employees affected. Mold is sometimes visible other times it can be hidden in insulation. Mold exposure is typically thought of leading to hayfever like allergic symptoms, but it can also lead to symptoms like chronic fatigue, irritable bowel syndrome and weight gain. About 25 percent of people are especially sensitive to mold and that sensitivity can be tested for by doctors.

In Nebraska, an employee just needs to show that an occupational factor or factors were a contributing factor to the injury. An employee exposed to mold in Nebraska should be able to collect workers’ compensation benefits for mold exposure even if they had pre-existing allergies or mold sensitivity. But other states have more stringent causation standards, so it could be harder to receive workers’ compensation benefits for mold exposure in those states.

The mass mold exposure by teachers in Stamford, Connecticut raises many interesting legal issues outside of workers’ compensation.

Challenges of collective action in the workplace

The first issue is the question of collective action when 120 employees are injured by a common hazard. The teachers are fortunate to be represented by a union. A union can be helpful in accommodating work injuries and helping employees gather information that can prove their workers compensation case. In a case of mold exposure, it is important to gather information about mold levels so doctors have sufficient foundation to relate symptoms to mold exposure. A union is helpful in getting such information.

But public sector unions are under attack by recent and upcoming Supreme Court litigation.  The National Labor Relations Act (NLRA) gives nonunion employees some right to act in a group or collective manner about the terms and conditions of their employment. But that right may have been limited by the Epic case decided by the Supreme Court at the end of the 2018 case.

Fortunately claiming workers compensation is a protected activity in most states. That means employees facing a common cause of injury would be protected from retaliation for pursuing workers compensation claims. Some states, like Nebraska, also have whistleblower statutes that would protect employees from reporting hazardous work conditions.

In cases where many people have suffered a common harm, they can file a collective or class action case. I don’t know if Connecticut allows for such claims in workers compensation. But a collective or class case in workers’ compensation could be a simpler and less epxenseive to handle workers’ compensation cases involving mass mold exposure.

Third party claims

Collective or class litigation is generally allowed in cases of mass negligence. Fault usually doesn’t matter in workers compensation, but if a third party is at fault for a work injury the employee (and in Nebraska the employer as well) can sue that third party. A third-party case usually gives an employer some right of subrogation that allows them to be repaid some of what they paid the employee in workers’ compensation benefits.

In a case of mass mold exposure employees and employers could be looking to sue a landlord or builder for negligent construction or maintenance. But if s third party didn’t cause the injury, employees are stuck with defined workers compensation benefits and employers have no hope of being repaid for workers compensation benefits they paid to employees.

The downside to s third party claim is that they usually require more expense to prove negligence. In my experience handling individual mold exposure workers compensation cases, the value of the claims usually would not justify the expense of third-party litigation. But if enough employees are joined in a case, it would make sense economically to pursue a negligence case.

The offices of Rehm, Bennett & Moore, which also sponsors the Trucker Lawyers website, are located in Lincoln and Omaha, Nebraska. Five attorneys represent plaintiffs in workers’ compensation, personal injury, employment and Social Security disability claims. The firm’s lawyers have combined experience of more than 95 years of practice representing injured workers and truck drivers in Nebraska, Iowa and other states with Nebraska and Iowa jurisdiction. The lawyers regularly represent hurt truck drivers and often sue Crete Carrier Corporation, K&B Trucking, Werner Enterprises, UPS, and FedEx. Lawyers in the firm hold licenses in Nebraska and Iowa and are active in groups such as the College of Workers’ Compensation Lawyers, Workers' Injury Law & Advocacy Group (WILG), American Association for Justice (AAJ), the Nebraska Association of Trial Attorneys (NATA), and the American Board of Trial Advocates (ABOTA). We have the knowledge, experience and toughness to win rightful compensation for people who have been injured or mistreated.

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Nebraska Supreme Court rules on employment risk, attorney fees and third party claims

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The Nebraska Supreme Court has made three recent rulings about workers’ compensation

Three important cases have recently come down from the Nebraska Supreme Court regarding workers’ compensation claims.

Probably the case with the biggest impact is Maroulakos v. Walmart case. In that case, the Supreme Court affirmed a decision by the trial court that found that an injury was not compensable when a worker was injured because of an “idiopathic” fall. What makes this case distinct from its predecessors is that it appears as though there was possibly evidence that there was an increased risk to the injured worker, which could have made the idiopathic fall compensable. However, the trial court did not explore that option and the Supreme Court found that it could not make a determination on an issue that was not at issue during the trial court. In other words, it appears that the Maroulakos case puts an extra burden on the Plaintiff to ensure that an “increased danger” analysis is overtly pled and argued at trial for idiopathic falls. The concurrence in that opinion hints that the at the trial court level, the court probably should have conducted an analysis as to whether there was an increased-danger when there was evidence presented that could contribute to that analysis of an idiopathic fall.

Another recent case was Dragon v. Cheesecake Factory. In Dragon, the work comp case reached a settlement that was accomplished via a settlement release under Section 48-139(3). The settlement was not paid, however, within the 30-day limit proscribed in 48-139(4) and thus, the Plaintiff argued that he was entitled to a 50% penalty for the late payment. The trial court denied the penalty under a theory that it did not have authority to award a penalty after the release had already been signed. The Supreme Court overturned the finding of the trial court and awarded the penalty based on the fact that the Nebraska Legislature cleared up any ambiguity in the statute in awarding penalties for settlements that are not paid within 30 days.

The final case that recently came down worth discussing is Gimple v. Student Transp of America. In Gimple, there are two take-aways. First, if there is a third-party action, along with the work comp claim, the Work Comp Court does not authority to make a determination of future credits for the employer or work comp carrier based on any monies paid in that their-party action.

Second, if there is a stipulation and no dispute as to an injury; then, there is a permanent impairment assigned to that injury, the Defendant must pay the permanent partial disability in a timely manner, within 30 days. In other words, there is no reasonable controversy.

The offices of Rehm, Bennett & Moore, which also sponsors the Trucker Lawyers website, are located in Lincoln and Omaha, Nebraska. Five attorneys represent plaintiffs in workers’ compensation, personal injury, employment and Social Security disability claims. The firm’s lawyers have combined experience of more than 95 years of practice representing injured workers and truck drivers in Nebraska, Iowa and other states with Nebraska and Iowa jurisdiction. The lawyers regularly represent hurt truck drivers and often sue Crete Carrier Corporation, K&B Trucking, Werner Enterprises, UPS, and FedEx. Lawyers in the firm hold licenses in Nebraska and Iowa and are active in groups such as the College of Workers’ Compensation Lawyers, Workers' Injury Law & Advocacy Group (WILG), American Association for Justice (AAJ), the Nebraska Association of Trial Attorneys (NATA), and the American Board of Trial Advocates (ABOTA). We have the knowledge, experience and toughness to win rightful compensation for people who have been injured or mistreated.

This entry was posted in attorney fees, employment risk, Nebraska, third party claims, Workers Compensation and tagged , , , , .