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Charleston WV Personal Injury Law Blog

Employment or independent contractor? The answer impacts workers’ compensation entitlement, P.2

In our last post, we began speaking about the issue of worker status for purposes of workers’ compensation insurance. As we noted, state law does not require workers’ compensation coverage for independent contractors, and so the issue of worker status can come up in cases where workers’ compensation benefits are sought.

In proving a workers’ status as an independent contractor, there are various criteria that must be met. The first is that the worker must present himself or herself as being in businesses for himself or herself. The worker must also have control over his or her work schedule and the means and manner of performance of the work. In other words, the worker must not be under ongoing supervision. 

Employment or independent contractor? The answer impacts workers’ compensation entitlement

A lawsuit recently filed by an injured worker provides a good springboard to a discussion about employment status as it relates to workers’ compensation benefits. The case involves a worker who alleges that he was not properly trained according to guidelines and requirements established by the Occupational Safety and Health Administration, which left him vulnerable to injury due to a fall. And fall he did, after a water line was improperly pressurized and he was consequently knocked off a ladder. That fall caused him to fracture is left elbow, which required surgery and medical treatment.

Sources didn’t say whether the man was an employee or independent contractor, though this would make a difference as to whether or not he was entitled to workers’ compensation benefits for the fall. Employees, of course, are limited to obtaining compensation through the workers’ compensation, unless it can be shown that the employer acted with deliberate intent in causing the injury. Such cases are rare, as we’ve previously discussed. 

Work with experienced attorney in workers’ compensation retaliation cases

Mining is obviously a dangerous industry, and workers are exposed to risks on the job every day. Miners, of course, have the right to receive workers’ compensation payments when accidents occur on the job, and should expect to received compensation when they file a legitimate claim. Unfortunately, employers and their workers’ compensation insurers do not always cooperate with the process.

A miner from Mallory filed a lawsuit at the beginning of the month against two West Virginia mining companies. According to his complaint, he was subjected to discipline after filing a workers’ compensation claim to pay for medical cost associated with a workplace injury. When he refused to sign the disciplinary documents, he was suspended and eventually terminated. 

Seeking punitive damages in a wrongful death claim

In our last post, we began speaking a bit about the types of damages available to those who lose a loved one in a car accident. We mentioned a case in which the daughter of a deceased accident victim was seeking not only compensatory damages in the form of both economic and noneconomic damages, but also punitive damages.

For those who may not know, punitive damages refer to damages that are awarded not in order to compensate the plaintiff, but in order to punish the defendant in a civil context. Punitive damages are based on the principle of deterrence. They are not automatically awarded, though. Both in West Virginia and in most states, the defendant must have engaged in some particularly egregious behavior in order for a court to award these damages. 

What damages are available when a loved one is killed in an accident?

Many of our readers have either personally experienced the death of a loved one due to a motor vehicle accident or have known someone who has. Aside from the tragedy of the loss itself, one of the biggest concerns on the mind of these people is their options for recovering damages. What kinds of damages are available in such a situation, though?

Earlier this month, a lawsuit was filed by the daughter of a man who was struck and killed by a Huntington driver earlier this year. The accident victim, a pedestrian at the time of the crash, was hit by a Honda  and left with serious injuries that ultimately resulted in his death after extensive medical care. As a result of the medical care, the family was left with significant bills, as well as the pain of having lost their loved one. 

New deliberate intent law went into effect last week

Readers are probably aware that the workers’ compensation system prevents injured workers from suing their employer for damages except in various limited circumstances. Different states look at the issue different ways and use different standards on this issue. Here in West Virginia, an established exception to the exclusive remedy rule is when an injured worker can demonstrate that the employer acted with deliberate intent to injure the employee.

As we’ve written previously on this blog, the scope of the application of this exception has been at issue for some time. Back in February, we wrote about a bill under consideration here in West Virginia that would clarify some of the issues that have come up in various cases on the issue of deliberate intent. That bill is now law, having gone into effect last Friday. 

Road check campaign highlights importance of federal truck safety regulations

Many West Virginia readers may not be aware that the Transportation Enforcement Division’s Public Service Commission conducted a commercial vehicle safety campaign this week. The campaign, which lasted three days, had the aim of promoting safety compliance among commercial drivers, with a particular emphasis on proper securing of cargo and ensuring that commercial drivers are abiding by federal hours of service regulations.

Commercial vehicle safety is an important issue nowadays as states continue to grapple with the challenge of reducing highway deaths stemming from truck accidents. The road check campaign is a small part of the effort to address this issue. Besides drawing greater awareness to trucking safety within the trucking industry itself, the campaign and others like it is also a reminder for all motorists of the duties truckers have under federal law. 

What does state law have to say about discrimination in workers’ comp cases? P.2

We’ve been speaking in recent posts on the issue of discrimination and retaliation in workers’ compensation cases, and particularly focusing on what state law says on the issue. As we’ve already pointed out, there are definite rules in place when it comes to what an employer may not do to an injured worker’s health insurance and employment status when that employee attempts to exercise his or her rights under workers’ compensation law.

State law, in addition to prohibiting termination of an injured worker out of a retaliatory motive, requires employers to reinstate employees who were terminated after sustaining a compensable injury, if the position is available and the employee is capable of performing the job duties. If the position is not available, the employer is required to place the individual in a comparable position. If neither option is available, the former employee has the right to “preferential recall” for one year after notifying the employer of his or her desire for reinstatement. 

What does state law have to say about discrimination in workers’ comp cases?

In our last post, we spoke about a lawsuit recently filed by a West Virginia worker who alleged that his employer routinely discriminated against employees who attempted to exercise their right to workers’ compensation. West Virginia law, to be sure, prohibits employers from discriminating in any fashion against present or past employees due to their receipt or attempt to receive workers’ compensation benefits. Here we wanted to take a brief look at what state law says on the matter on two important points: health insurance and termination.

With respect to health insurance, employers are not allowed to cancel the policy, decrease participation on behalf of the employee or his dependants, or decrease the employee’s coverage during the time an employee is receiving workers’ compensation benefits for a temporary disability. That being said, an employee is allowed to change insurance carriers, or reduce or cancel medical coverage, so long as other employees in the same class are treated the same.  

Work with experienced attorney when employer obstructs receipt of workers’ comp benefits

Workplace injury can be very disruptive to a worker’s life, and swift receipt of workers’ compensation benefits can make a big difference in helping a worker recover.  As we frequently mention on this blog, though, employers and their insurance carriers do not always treat injured workers fairly and in a straightforward manner with respect to their injuries and the benefits available. In some cases, workers face significant opposition in obtaining the benefits they are entitled to receive.

One West Virginia man recently filed a lawsuit against his employer claiming that he was denied workers’ compensation based on a discriminatory practice his employer used against injured workers. That practice involved requiring injured workers who were unable to perform their job duties to come in to work—in some cases against the advice of their physicians—and sit on the job for a full day in order to obtain their pay. In some of these cases, the workers didn’t even receive the wages due to them. 

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Office Locations in Charleston, Logan and Summersville, West Virginia

Office Locations in Charleston, Logan & Summersville, West Virginia

213 Hale Street | Charleston, WV 25301 | Local: 304-932-4639 | Toll Free: 1-800-889-5851 | E-Mail Us| Map & Directions

116 Stratton Street | Logan, WV 25601 | Local: 304-932-4639 | Toll Free: 1-800-889-5851 | E-Mail Us | Map & Directions

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