Recently,Jim Higgins was interviewed about a Tennessee Worker who won an Americans with Disability Act case against a state newspaper. The case involves a worker with a disability who was dinied a reasonable accomadation to perform his job.
You can watch the interview here:
There seems to be a common perception that Tennessee Workmen’s Compensation cases involve only factory workers or truck drivers. Although, that is a significant portion of the cases due to the inherent dangerous nature of those jobs, there are many other types of work comp cases out there. One recent example involves the workers compensation claim of Tennessee Titan, Kevin Mawae.
Kevin Mawae was a center for the titans. He had outstanding seasons in 2008 and 2009. Unfortunately, these seasons also took a toll on his body. Specifically, he sustained permanent injuries to his shoulders, elbows, wrists, right thumb and lower back. However, Mr. Mawae is considered an employee of the Tennessee Titans and like almost all employees he is automatically covered by the Tennessee Workers Compensation Act. As a result, he settled his case for $114,000.00 and life time medical treatment.
The amount of this settlement says a few things about our system. To begin, I believe it is clear that the amount of money he received in no way begins to make up for the financial losses he will sustain as result of his injuries. Nor will this amount make up for the life of pain that this man is destined to endure. The reason for this is a result of the strict limitation our legislatures have placed on the amount of recover someone can obtain for a Tennessee work comp injury. The placed these limits by claiming it would make Tennessee more attractive to business because the costs of worker comp will be lower. Unfortunately, it is the injured workers how pay the price. However, it is important to note that he will receive medical treatment for these work injuries for the rest of his life. That is one great benefit of our system.
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Almost all of my workers compensation clients ask: “What are my employment rights now that I have been injured at work?” Although the answer to this question varies from case to case, we often find protections for our client outside of the Tennessee Workers Compensation Act. The most common protections are found in the Americans with Disabilities Act and the Family Medical Leave Act.
The Americans’ with Disabilities Act (ADA) is a Federal Act that prevents an employer from discriminating against any employee with a disability. As such, if a work injury leaves you with a physical disability, but you can still perform the essential functions of your job with limited or no accommodations, your job should be protected. The law requires your employer to make “reasonable” accommodations.
Unfortunately, the ADA does not cover all employees. To be covered, the employer must have fifteen or more people employed throughout the year. Additionally, the employee must have an impairment or perceived impairment that substantially limits or impairs his or her ability to perform a major life activity. Major life activities include things like walking, breathing, standing, thinking, etc. Finally, the employee must be able perform all of the essential functions of the job either without any accommodation or with a “reasonable” accommodation.
The ADA can help protect an injured employee both during medical treatment and after medical treatment for an injury has completed.
During treatment. The ADA may provide protection to an injured worker with restrictions who can still perform his or her regular job with, or without, any reasonable accommodation.
After Treatment. A worker who is released to work with restrictions after completing medical treatment is protected so long as he or she is capable of performing all of the essential functions of the job. If other positions open up – and the disabled employee is qualified to do the open position – then the ADA may provide a legal obligation to the employer to offer that alternative position.
As to the Family Medical Leave Act (FMLA), an employee can take up to twelve (12) weeks of unpaid leave in a 12-month period for any of the following reasons:
• For the birth and care of a newborn child of the employee;
• For the placement with the employee of a son or daughter for adoption or foster care;
• To care for a spouse, son, daughter, or parent with a serious health condition;
• To take medical leave when the employee is unable to work because of a serious health condition; or • For limited emergencies; when the employee’s spouse, son, daughter, or parent is on active duty or called to active duty status as a member of the National Guard or Reserve.
Similar to the ADA, the FMLA only applies to certain employees. To be covered by the FMLA, the employer must have 50 or more employees within a 75 mile radius of the worksite, the employee must have been employed for a minimum of 12 months and worked at least 1,250 hours over the previous 12 months.
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We all have an expectation of privacy with regard to our medical records. However, when you file a Tennessee workers compensation claim you will lose much of that privacy. Understandably, if you have a work injury the employer has a right to know the extent of the injury when resolving your case. The difficulty arises with the employer want to go beyond the medical records related to injury and dig into medical history that is not related. As a Tennessee Workers Comp lawyer I have faced this battle several times. So what are your rights?
To have some guidance we need to look at the TN workers comp act. Here is part of the relevant language:
It is the intent of the general assembly that the administration of the workers’ compensation system proceed in a timely manner and that the parties and the department have reasonable access to the employee’s medical records and medical providers that are pertinent to and necessary for the swift resolution of the employee’s workers’ compensation claim.
So the big question becomes what is “pertinent to and necessary” . Generally, this depends on your claim. If you have a back injury then the employer may have a right to all of your prior orthopedic records. They would argue these records are necessary to see if your injury is the result of a prior condition. However, if you have a broken leg then prior records probably aren’t relevant. The bottom line is that you will lose some medical privacy if you file a claim. However, the lose of that privacy should be very limited. A doctor patient privilege is a time honored relationship and it should stay that way as much as possible.
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Our Supreme Court has issued an opinion that may give employees a little more time to file a Tennessee Workers Compensation Case. Specifically, the court has clarified just how long an injured Tennessee employee has to file a claim. The court ruled that the employee has one year from the date he should know they sustained a permanent injury. This is very important in gradual injury cases and in cases where an employee may not realize just how serious their work injury may be. You can watch the interview below for a more detailed explanation of the ruling:
Recently I discussed the current laws that can protect a woman’s job both during a pregnancy and after the birth of the child. In general there are three (3) key acts that can protect a pregnant employee’s job. These acts include the Pregnancy Discrimination Act (“PDA”), the Family Medical Leave Act (“FMLA”) and sometimes the Americans with Disabilities Act (ADA). If you would like to see our discussions on these acts you can watch the interview below:
The Tennessee Supreme Court has recently denied TN workers’ compensation benefits to a lineman for Fayetteville Public Utilities who was injured on the job.
What is important, and disturbing, about this case is that the Supreme Court held that the worker, by removing his safety gloves, engaged in a “willful” act of disregard for established safety policies. They reversed an earlier court’s decision and ordered that he be denied benefits.
The reason this case is important is it changes what has always been a “no-fault” based system to help injured workers. In other words, the system was established with an understanding that accidents occur at work that are both the fault of the employee and the employer. We all make mistakes. Based upon that understanding the law was drafted so a worker does not get punished if he accidentally causes and accident nor will the employer be punished if it accidentally causes an accident. The sole consideration was whether the employee got hurt at work. With this case, however, we move away from that system and now punish an employee if they make a mistake and fell to follow a safety rule. Obviously, no one wants a life changing injury but now if you accidentally cause an accident you may be left out in the cold. To the contrary, if the employer breaks a safety rule then there is no repercussions under the Tennessee Workers Comp Act. They employer will be protected by the act regardless of fault.
As a Tennessee Workers Comp Lawyer I have been litigating these cases for almost twenty years now. Over these years I have seen the legislature and the courts take away basic benefits that will help an employee get the medical help and financial assistance they need to survive. Although there are still benefits available the fight has become harder over the years and I have seen good working men and women surfer. It is unfortunate.
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Tennessee Workers Compensation cases are unique. When a Judge decides what the case is worth there are very specific factors the law requires them to consider. This factors are set out in both the case law and by statute. They include the injured worker’s age, eduction, job history, medical impairment and medical restrictions. Recently, Jim Higgins was explained these factors on an television interview. You can watch the interview by clicking below:
Tennessee worker’s compensation claims may be difficult to prove in court if a specific procedure is not followed by the employee and their employer soon after the injury has occurred. In the past few blogs, I have looked at common mistakes made in Tennessee worker’s compensation cases. Another mistake I often see when clients file these claims is failing to seek reasonable medical attention soon after the injury occurred. In Tennessee, worker’s compensation law requires that the injured employee has the responsibility of proving that they were injured while at the workplace. It may difficult to prove this however, if you do not seek reasonable medical attention almost immediately after you have been injured. This is why it is best to seek the medical attention you need for injury as soon as possible.
Many people may not want to seek medical attention after a work injury because they do not think they need it or because they do not want to leave work in order to seek the medical attention they need. However, if you wait to seek medical attention for a work-related injury, insurance companies may believe that this is a sign that you did not suffer significant injury because you failed to seek treatment for it. If this happens to you, please contact one of our experienced and caring worker’s compensation attorneys immediately. Another important reason to seek medical attention as soon as possible after a work-related injury is because it may take days or weeks for you to realize how injured you are, however, if a doctor examines your injury right away, they be able to detect it shortly after the incident occurred.
Finding a lawyer today is not always so easy. People are bombarded with commercials and advertising but how do you find a lawyer that is right for you and your case. We always suggest that before you hire a TN work comp lawyer you should perform some basic research. The best place to start is to ask someone you know that has already been through the work comp system who they used and did they fell a good job was performed. Next look on the internet. You can usually get some basic information about a lawyer’s experience and success from their websites. Last but not least go meet with a few lawyers. A workers compensation lawsuit can be very stressful so it is important that you and your lawyer “click”.
Recently, Jim Higgins, was interviewed about this subject. You can watch the interview by clicking below:
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Tennessee Injury Lawyer Blog