This Was Not a Freak Accident

[shatteredone]

What is the name of your state? UT

This is my first post here.

I have been told a small amount about how Worker's Comp. works but there's some confusing information that I have rec'd. Here goes...

Worker's comp must pay for medical expenses etc. but you cannot sue the employer not matter what he did wrong. Right?

The employee was seriously injured, almost killed, at work because the employer failed to train the employee or even warn of any danger in using a potentially deadly machine. Most of the time with this type of accident the employee dies. This 16-year-old employee at the very least will have the lasting effects of a TBI (traumatic brain injury)

I believe that the employer is in violation of the General Duty Clause...failure to furnish a place of employment which is free from recognized hazards that are causing or are likely to cause death or serious physical harm to his employees. Is that enough to pierce the workers comp protection?

I have been advised that you need have a Federal Law broken in order to pierce that protection.

 

[Maze]

General duty clause

What is the name of your state? UT

This is my first post here.

I have been told a small amount about how Worker's Comp. works but there's some confusing information that I have rec'd. Here goes...

Worker's comp must pay for medical expenses etc. but you cannot sue the employer not matter what he did wrong. Right?

The employee was seriously injured, almost killed, at work because the employer failed to train the employee or even warn of any danger in using a potentially deadly machine. Most of the time with this type of accident the employee dies. This 16-year-old employee at the very least will have the lasting effects of a TBI (traumatic brain injury)

I believe that the employer is in violation of the General Duty Clause...failure to furnish a place of employment which is free from recognized hazards that are causing or are likely to cause death or serious physical harm to his employees. Is that enough to pierce the workers comp protection?

I have been advised that you need have a Federal Law broken in order to pierce that protection.

Workers' comp is the sole remedy against an employer for a work-related injury. I've never heard that a federal law needs to be broken to pierce workers' comp as sole remedy. Doesn't really make sense as workers' comp is mandated by each specific state and is not mandated by the federal government.

The General Duty Clause is an OSHA regulation. Did OSHA investigate the accident? The employer is only obligated to contact OSHA if the accident involves a fatality or if three or more employees are hospitalized as a result of the accident. If OSHA has not been contacted you can always call them anonymously (sp) and relate the details of the accident to them and they will probably send someone to the facility. The company can be fined by OSHA if they are found to be in violation of an OSHA regulation.

Paula

 

[shatteredone]

Workers' comp is the sole remedy against an employer for a work-related injury. I've never heard that a federal law needs to be broken to pierce workers' comp as sole remedy. Doesn't really make sense as workers' comp is mandated by each specific state and is not mandated by the federal government.

The General Duty Clause is an OSHA regulation. Did OSHA investigate the accident? The employer is only obligated to contact OSHA if the accident involves a fatality or if three or more employees are hospitalized as a result of the accident. If OSHA has not been contacted you can always call them anonymously (sp) and relate the details of the accident to them and they will probably send someone to the facility. The company can be fined by OSHA if they are found to be in violation of an OSHA regulation.

Paula

Thanks for reply Paula

Yes OSHA did come to the place of employment and botched the investigation. Let's just say that they did site the employer for lack of training, which was a fine of about 2000.00 knocked down to 1200.00 what an insult. They missed several other key pieces of evidence that really doesn't change the outcome of WC paying for the bills. What they overlooked just makes them appear less then competent in my opinion.

In answer to the Federal Government broken law issue... My understanding is that yes you are right with each state running their own WC. The reason why the broken Federal law can pierce WC is that Federal Law is a "higher law"? I am looking to be able have a civil case against the employer for total lack of training of a minor child. Something that I just read today’s is this:

"The workmen's compensation act (St. 1911, c. 751), while intended to take away from injured employees, who shall become subject to its provisions, all common law rights of action, does not affect the right of action of the parent of a minor servant, who was injured, for the injury not only gives rise to one cause of action in favor of the minor, but to another in favor of his parents, and the parent's action is in no way consequential on that of the minor, being based on loss of services during minority and expenses necessitated by the injury. The right of action of a parent of an injured minor servant is not barred by an allowance to the servant under the workmen's compensation act (St. 1911, c. 751), on the theory that the compensation is really a payment of wages to which the parent is entitled, for part 2, s 11, clearly shows that the allowance, though based on salary, is also for permanent injuries. King v. Viscoloid Co. 106 N.E. 988, 219 Mass. 420 (Mass. 1914)"

Are there any idea's about the legitimatecy (sp) of the above in " quotation" marks?

 

[Maze]

Thanks for reply Paula

Yes OSHA did come to the place of employment and botched the investigation. Let's just say that they did site the employer for lack of training, which was a fine of about 2000.00 knocked down to 1200.00 what an insult. They missed several other key pieces of evidence that really doesn't change the outcome of WC paying for the bills. What they overlooked just makes them appear less then competent in my opinion.

In answer to the Federal Government broken law issue... My understanding is that yes you are right with each state running their own WC. The reason why the broken Federal law can pierce WC is that Federal Law is a "higher law"? I am looking to be able have a civil case against the employer for total lack of training of a minor child. Something that I just read today’s is this:

"The workmen's compensation act (St. 1911, c. 751), while intended to take away from injured employees, who shall become subject to its provisions, all common law rights of action, does not affect the right of action of the parent of a minor servant, who was injured, for the injury not only gives rise to one cause of action in favor of the minor, but to another in favor of his parents, and the parent's action is in no way consequential on that of the minor, being based on loss of services during minority and expenses necessitated by the injury. The right of action of a parent of an injured minor servant is not barred by an allowance to the servant under the workmen's compensation act (St. 1911, c. 751), on the theory that the compensation is really a payment of wages to which the parent is entitled, for part 2, s 11, clearly shows that the allowance, though based on salary, is also for permanent injuries. King v. Viscoloid Co. 106 N.E. 988, 219 Mass. 420 (Mass. 1914)"

Are there any idea's about the legitimatecy (sp) of the above in " quotation" marks?

Shattered one, I did a little research on the piercing the shield thing. The employer doesn't have to break a federal law to pierce the shield - an employer can lose w/c as sole remedy if "employer's conduct constitutes an intentional tort or wilful, wanton, and reckless misconduct. See Barr v. Curry, 137 W.Va. 364, 71 S.E.2d 313 (1952); Stone v. Rudolph, 127 W.Va. 335, 32 S.E.2d 742 (1944); See 2 Restatement (Second) of Torts s 500-03 (1965)." BUT I'm not sure if that is in all states.

The case you cited in the quotation works in some states and not in others - it all depends upon the wording of state's w/c statute and w/c act. I found the following in the Utah Labor Code as applying to injuries to minors:

34A-2-404. Injuries to minors.
(1) A minor is considered sui juris for the purposes of this chapter and Chapter 3, Utah Occupational Disease Act, and no other person shall have any cause of action or right to compensation for an injury to the minor employee.
(2) Notwithstanding Subsection (1), in the event of the award of a lump sum of compensation to a minor employee, the sum shall be paid only to the minor's legally appointed guardian.

(sui juris - 1 : having full legal capacity to act on one's own behalf : not subject to the authority of another)

I'm not sure if I am interpretating it correctly but it appears w/c may be the only remedy.

Perhaps a workers' compensation attorney can be contacted for a consultation to see if there is any other recourse.

Paula

 

[shatteredone]

Shattered one, I did a little research on the piercing the shield thing. The employer doesn't have to break a federal law to pierce the shield - an employer can lose w/c as sole remedy if "employer's conduct constitutes an intentional tort or wilful, wanton, and reckless misconduct. See Barr v. Curry, 137 W.Va. 364, 71 S.E.2d 313 (1952); Stone v. Rudolph, 127 W.Va. 335, 32 S.E.2d 742 (1944); See 2 Restatement (Second) of Torts s 500-03 (1965)." BUT I'm not sure if that is in all states.

The case you cited in the quotation works in some states and not in others - it all depends upon the wording of state's w/c statute and w/c act. I found the following in the Utah Labor Code as applying to injuries to minors:

34A-2-404. Injuries to minors.
(1) A minor is considered sui juris for the purposes of this chapter and Chapter 3, Utah Occupational Disease Act, and no other person shall have any cause of action or right to compensation for an injury to the minor employee.
(2) Notwithstanding Subsection (1), in the event of the award of a lump sum of compensation to a minor employee, the sum shall be paid only to the minor's legally appointed guardian.

(sui juris - 1 : having full legal capacity to act on one's own behalf : not subject to the authority of another)

I'm not sure if I am interpretating it correctly but it appears w/c may be the only remedy.

Perhaps a workers' compensation attorney can be contacted for a consultation to see if there is any other recourse.

Paula

Thanks again Paula,

I would rather buy you lunch so that we could discuss this in person instead over a public forum. LOL oh well, maybe this can benefit other's as well.


"The employee was seriously injured, almost killed, at work because the employer failed to train the employee or even warn of any danger in using a potentially deadly machine."

Would this be considered this?

"The employer doesn't have to break a federal law to pierce the shield - an employer can lose w/c as sole remedy if "employer's conduct constitutes an intentional tort or wilful, wanton, and reckless misconduct."

Another Question

"1) A minor is considered sui juris for the purposes of this chapter and Chapter 3, Utah Occupational Disease Act, and no other person shall have any cause of action or right to compensation for an injury to the minor employee. "

Geesh, if that is the case then this is totally a case of an employer 'hit and run' and getting away with it. Where is the accountability of the employer for his wrong doing? Where is the justice in the Justice System? Why are there Child Labor Laws that only protect SOME children? As a parent it would be nice to know that someone (the gov.) is regulating employers to safeguard their employees. I know, that's the job of OSHA. Has anyone ever won a case against them?

(Paula these questions are not directed at you... just a mother venting)

Paula, you are great!
Thanks, Shattered One