A 55 year old worker suffered second and third degree burns to his foot at work while cleaning heavy equipment with a high pressure steam power washer. His employer had no workers compensation insurance at the time; the policy having been cancelled for non-payment of premiums months before. The employee hired us after months of being strung along by his employer with promises to pay his wages and medical expenses. He had suffered financially long enough. He had no money coming in and had bills to pay. I sued the employer under a state law which holds an employer liable for tort damages when there is no available workers compensation coverage for an injured employee. Tort damages means more than traditional workers compensation benefits. For a new workers compensation claim these benefits typically include payment of medical expenses and 60% of the lost wages up to a state maximum rate. In contrast, tort damages includes the medical bills, 100% of the lost wages, pain, suffering and diminished enjoyment of life, as well as future expected damages. All that the injured employee needs to prove under this state law is that he sustained an injury while acting in the scope of his employment. It does not matter whose fault the injury was or that the employee may have carelessly injured himself.
After being sued, the employer cut a deal with its insurer and obtained a new workers compensation policy. The insurance company agreed to retroactively cover the workers compensation benefits of the injured employee. With this retroactive coverage the employer counted on us dropping the lawsuit. Prevailing law at the time was that an injured employee could not have both workers compensation benefits and a tort suit against the employer. Once workers compensation benefits are received, the employee is treated as making an election forgoing the right to sue the employer. However, I refused to drop the lawsuit and argued this election was inapplicable to this case. I argued to the court there are uninsured, injured employees out there who are either unaware of their rights or do not have the courage to bring a lawsuit themselves. We needed the Court to make a stand. If the Court dismissed our lawsuit, there would be no deterrent to employers who choose to let their policies lapse leaving their employees unprotected, only to then get back dated coverage, if, and when, an injured employee ever files a lawsuit. The Court agreed and denied the employer’s motion to dismiss our lawsuit. We then filed a motion, which the Court granted, to freeze $350,000.00 of the employer’s assets.
After mediation, the employer agreed to pay $500,000 to the injured employee. The workers compensation insurer who made the retroactive payment agreed to take no lien against this recovery and agreed to continue to pay for all future medical expenses.
– Steven M. Ballin, Esq.
