Posted on Thursday, September 8th, 2016 at 10:13 pm
Follow the link to read an important published decision by the Eastern District of Kentucky federal court, in which Justin Lawrence successfully argued that his admiralty client, a Jones Act Seaman working on the Ohio River, was entitled to proceed to a trial by jury on all his claims for damages. Lawrence & Associates Accident and Injury Lawyers, LLC later settled the claim for a confidential amount.
Thanks to Westlaw, a Thompson Reuters company that helps attorneys perform legal research, for providing this document. Attorneys can find out more about Westlaw by following the link to their website.
If you were injured on the job while working in Ohio, you are probably covered under Ohio’s Workers’ Compensation Code. Here are the things that Ohio Revised Code 4123 requires injured workers to prove to have their claim allowed:
That you were actually employed by the company you are filing a claim against at the time you were hurt;
That the injury arose out of the course of employment, and;
That the injury was accidental in character and result.
Employers have the right to dispute any of these elements, and this can create complex legal obstacles for an injured worker to navigate. This is why it is important to find an attorney who can guide you through the Ohio worker’s compensation process to ensure your claim is allowed and you receive the benefits you are entitled to.
How Could My Employer Challenge My Claim?
Examples of common challenges employers may bring in their attempt to get a claim denied include the following:
Employers may assert that an injured worker is not in fact an employee. This challenge often comes into play in cases of independent contractors, temps, labor leasing and interns. Both statutory and case law are complex in this area, and the classification is not always cut and dry. Therefore, if you employer is claiming that you are not an employee, you should seek out an experienced attorney who can help you decipher if you are entitled to worker’s compensation benefits and who knows how to advocate for your rights.
Employers might argue that an injury did not arise out of the employment. Common scenarios in which this argument might be raised are when there is a toxic exposure over a long period of time at a work place, when there is an injury resulting from a repetitive motion brought on by work places duties which did not have a specific onset date, or heart attacks that occur while on the workplace premises. While some of these instances may result in denial of a claim, the validity of such a claim should not be discounted automatically. Several details must be taken into consideration in each of these instances, and attention to various factors could mean the difference between a claim being allowed or denied.
Ohio law states that employers are not permitted to pass blame on the injured worker for the workplace injury because Ohio is a no fault state. If an employer is asserting that a claim should not be allowed due to an injured workers lack of common sense, failure to follow work rules, inattention to details or other similar careless actions, that injured worker needs to find an Ohio attorney who is familiar with the Ohio no-fault system to advocate for their rights and prevent them from failing receive the benefits they deserve under such a no-fault system.
Ohio worker’s compensation law is complex and the process of getting your Ohio worker’s compensation claim allowed can be difficult and stressful. Employers are only looking out for their own interests and have their own attorneys working to save them time and money. As an injured worker you need an experienced Ohio attorney in your corner to make sure you claim is not wrongfully denied.
What Can You Do To Protect Your Workers’ Compensation Rights Under Ohio Law?
The Ohio Bureau of Workers’ Claims has a handy handbook for injured workers that will outline many of your rights for you. There is also an ombudsman employed by the BWC that is tasked with attempting to resolve disputes related to the procedural requirements of filing a Workers’ Compensation claim.
However, the only way to get true representation in this system is to hire an attorney, as referenced above. Attorneys are paid by contingency fee, so you do not have to spend money out of pocket, and attorneys have an ethical duty to represent you to the fullest of their ability. If you would like to speak to an attorney about the specifics of your claim, call Lawrence & Associates Accident and Injury Lawyers, LLC today for a free consultation. We’re Working Hard for the Working Class, and we can help you!
In this article, Justin Lawrence explains the difference between Workers’ Compensation benefits and the Jones Act, which provides benefits for men and women who work on navigable waterways such as the Ohio River. Workers should know under which system they are eligible for benefits, and what benefits they are supposed to receive if they get injured.
Know your rights! Call us if you have any questions about a maritime or land based injury – we can help!
Justin Lawrence recently wrote an article for the Advocate, Kentucky’s trial lawyer community’s premier publication, about what needs to be done when a person who is injured by an automobile accident, slip and fall, or workplace injury files for bankruptcy while their lawsuit is still pending.
Justin regularly advises other attorneys on the best course of action to take when personal injury, workers’ compensation, social security disability, and bankruptcy claims come together, so injured men and women get the best results possible.
Attorney Justin Lawrence, founder of Lawrence & Associates Accident and Injury Lawyers, LLC, recently wrote an Amicus (or “Friend of the Court”) brief for the Kentucky AFL-CIO at the Kentucky Supreme Court. The brief concerned a Workers’ Compensation case in which the injured worker demanded full compensation for his injury and for lost income benefits stemming from the fact that his employer brought him back on a limited basis and then fired him. Lawrence & Associates Accident and Injury Lawyers, LLC is particularly happy that the Supreme Court adopted Justin’s argument that the employer bears the burden of proving why an employee is fired, rather than the prior rule of thumb which placed that burden on the employee, even if the employee was never told why he was fired!
John Fuertes, Appellant v. Ford Motor Co.; Honorable James Kerr, Administrative Law Judge; and Workers’ Compensation Board, Appellees.
Decided: February 18, 2016
COUNSEL FOR APPELLANT, JOHN FUERTES: Charles E. Jennings COUNSEL FOR APPELLEE, FORD MOTOR CO.: Peter J. Glauber, Philip J. Reverman, Jr., Elizabeth M. Hahn COUNSEL FOR AMICUS CURIAE, THE KENTUCKY CHAPTER OF AMERICAN FEDERATION OF LABOR AND CONGRESS OF INDUSTRIAL ORGANIZATIONS: Justin Lee Lawrence
OPINION OF THE COURT
Appellant, John Fuertes, appeals a Court of Appeals decision which affirmed the Administrative Law Judge’s (“ALJ”) finding that his workers’ compensation award should not be enhanced by the two multiplier pursuant to KRS 342.730(1)(c)2. Because of this Court’s decision in Livingood v. Transfreight, LLC, 467 S.W.3d 249 (Ky.2015), we reverse the Court of Appeals and remand this matter for further proceedings.
Fuertes suffered a work-related accident while employed by Appellee, Ford Motor Company, on October 30, 2003. He filed for workers’ compensation. Before his claim could be resolved, Fuertes was fired by Ford for “performance related issues.” Fuertes contends that he was fired because of his work-related injuries. Specifically, Fuertes states that he missed a lot of work to undergo rehabilitation or physical therapy. He also was under work restrictions which limited his ability to perform his job.
After a review of the evidence, the ALJ found that Fuertes suffered a work-related injury to his right shoulder, right knee and neck.1 Workers’ compensation was awarded accordingly. The ALJ declined to apply a multiplier to Fuertes’s award. He stated that “[t]here is no evidence that [Fuertes’s] cessation of employment was the result of his work-related injury.” See Chrysalis House, Inc. v. Tackett, 283 S.W.3d 671 (Ky.2009). However, the ALJ failed to specifically address the application of KRS 342.730(1)(c)2, the two multiplier. Fuertes filed a petition for reconsideration asking the ALJ to reconsider his finding that there was no evidence to indicate his termination was the result of his work-related injury and that the ALJ make a determination as to the reason Fuertes was fired. The petition for reconsideration was denied.
Fuertes appealed to the Workers’ Compensation Board (“Board”). The Board issued an opinion affirming in part, reversing in part, and remanding. The Board found that the ALJ did not address Fuertes’s request in his petition for reconsideration for a determination as to the reason why he was terminated from Ford. Fuertes then appealed to the Court of Appeals requesting a remand to the ALJ for findings regarding his entitlement to the two multiplier per KRS 342.730(1)(c)2. The Court of Appeals found that the ALJ did address the applicability of the two multiplier, but remanded the matter to the Board for consideration of whether the ALJ erred in finding that substantial evidence did not support application of the multiplier. On remand, the Board stated that, “the evidence did not compel a finding Fuertes was entitled to enhancement by the two multiplier at the time of the ALJ’s decision.” The Board further stated that Fuertes’ speculative testimony did not compel the ALJ to find that the work-related injury led to his termination. Fuertes again appealed to the Court of Appeals which affirmed the Board. This appeal followed.
The Board’s review in this matter was limited to determining whether the evidence is sufficient to support the ALJ’s findings, or if the evidence compels a different result. W. Baptist Hosp. v. Kelly, 827 S.W.2d 685, 687 (Ky.1992). Further, the function of the Court of Appeals is to “correct the Board only where the Court perceives the Board has overlooked or misconstrued controlling statutes or precedent, or committed an error in assessing the evidence so flagrant as to cause gross injustice.” Id. at 687–88. Finally, review by this Court “is to address new or novel questions of statutory construction, or to reconsider precedent when such appears necessary, or to review a question of constitutional magnitude.” Id. The ALJ, as fact-finder, has the sole discretion to judge the credibility of testimony and weight of evidence. Paramount Foods, Inc. v. Burkhardt, 695 S.W.2d 418 (Ky.1985).
Fuertes argues that the Board and Court of Appeals erred by usurping the ALJ’s role as fact finder and interpreter of the evidence concerning application of the two multiplier to his award. Fuertes also contends that the ALJ erred when he found that there was no evidence the termination was related to the work-related injury. However, we need not address the merits of Fuertes’s arguments because this matter must be remanded for further fact finding.
Since the ALJ issued the opinion and order on remand and the opinion and order on reconsideration, this Court has reversed the portion of Chrysalis House, 283 S.W.3d 671, which held that the claimant’s failure to earn the same or greater wages must be related to the work-related injury before the two multiplier may be awarded. Livingood, 467 S.W.3d at 249. Instead this Court now holds that “KRS 342.730(1)(c)2 permits a double income benefit during any period that employment at the same or a greater wage ceases for any reason, with or without cause,’ except where the reason is the employee’s conduct shown to have been an intentional, deliberate action with a reckless disregard of the consequences either to himself or to another.” Id. at 259
In this matter, no finding has been made whether Fuertes’s conduct at Ford satisfies this new standard so as to justify the denial of the application of the two multiplier. On remand, the ALJ should make a finding of whether Fuertes engaged in conduct as outlined in Livingood that led to the reduction of hours he worked and ultimate termination. We note that this is a high standard and basic bad behavior will not bar application of the two multiplier. If Fuertes did not engage in such conduct, the two multiplier may be applied to his award.
Fuertes has additionally requested that this Court decide whether the claimant or employer has the burden of proof to show the employee was fired due to the type of misconduct as described in Livingood. To prove that the claimant was fired because he committed that type of misconduct, evidence must be provided which supports the conclusion the claimant acted inappropriately. Obviously it is unlikely that the claimant would admit to misconduct. Because of this, and since proving that type of misconduct occurred is a defense against application of the two multiplier, the burden of proof is upon the employer to show the claimant’s termination was caused by the type of behavior described in Livingood.
Thus, we reverse the decision of the Court of Appeals and remand the matter to the ALJ for proceedings consistent with this opinion.
1. Fuertes later was found to have suffered work-related hearing loss and he was awarded workers’ compensation.
Learn more about Pete Tripp, the Senior Associate at Lawrence & Associates Accident and Injury Lawyers, LLC
How long have you been in practice?
Since 2012. I have been with Lawrence and associates since early 2015. I am admitted in Ohio and Kentucky. Prior to practicing law, my career was in sales, and retail management.
Describe your area of practice.
I head the workers’ compensation practice at Lawrence and Associates, which takes about seventy percent of my time. I practice personal injury, which takes about twenty five percent of my time, the remainder is spent on developing employees and the law office to promote an efficient client-driven organization.
Why did you choose these practice areas?
I would say they chose me. I always wanted to be a litigator, my late father in law was a judge in Ohio, and I excelled in trial advocacy at law school. I represented the law school on the national trial team, helping fill the trophy cabinet along the way. I now teach that class as an adjunct professor. Specifically I chose my position at Lawrence & Associates Accident and Injury Lawyers, LLC based on my background. I already had experience as a personal injury attorney with a large Ohio firm, and I had worked in workers’ compensation as a defense attorney for a couple of years before transitioning to exclusively representing injured people.
What attracted you to these areas of practice?
A sense of justice. I have seen first-hand many occasions where the insurance company holds all the cards and the injured worker gets a bad outcome. This simply did not sit well with my personality. I prefer to fight for the injured party rather than protect the wallets of insurance companies. I bring my experience from defense work to aid the injured worker, and to me that feels like it is the right thing to do. I became a lawyer to help people. At Lawrence & Associates Accident and Injury Lawyers, LLC, that is the goal. So these practice areas help me achieve that in a firm that shares my ideals.
What makes you or your practice stand out?
Commitment, determination, and advocacy. I begin every case as if it is going to trial. By doing so, we are better prepared to fight for our clients. Because I have a management background, I bring business experience that is simply not taught to lawyers and I use that to make the firm more efficient. The end goal is rapid results-driven recoveries for our clients.
What is the biggest success you have had?
I don’t believe attorneys should look at cases as their successes. The focus should be on whether the client considers the case a success. I suppose the biggest success I have had is in developing a team that believes the goal is to exceed our clients’ expectations. If the client is happy, I’m happy.
What is your favorite part of running your practice?
When a client breathes that sigh of relief because they know we are there for them. I tell my clients that it is my job to worry about their cases, so they don’t have to.
What are the biggest challenges you face?
Big insurance companies. They have all the money, and a system in place that quickly operates against the injured person when they choose to deny a claim. I know what to do when the system turns against my client, but I try to stop that happening in the first place when I can. That is always a challenge,
Do you have any special education, background or skills? What unique talents do you bring to your practice?
I was a person before I was a lawyer! My background includes over a decade of management experience and I bring that experience to my client’s cases. My career has taken me from London, England to the USA with an almost two year spell in Warsaw, Poland in between. Living in other countries gives you other perspectives. I use those perspectives when I strategize over a case. I hold teaching and training qualifications, which hone my skills as a negotiator, I use them to get the best deals I can for my clients.
What is the best advice that you received and who did it come from?
We’ve written previously about some common sense tips for selecting the right attorney for your case. That article, while general, received good reviews. We’re going to revisit the issue here to help people in the Northern Kentucky and Greater Cincinnati areas get all the information they need about a new attorney before hiring him or her.
Go to the Bar Associations
We mentioned previously that all Kentucky attorneys are required to be registered with the Kentucky Bar Association, which handles disciplinary matters (such as bar complaints) for Kentucky attorneys. But there are many other organizations for attorneys in this area, and many of those include specials CLEs (continuing legal education) in various practice areas that attorneys can go to. For this reason, you can sometimes feel comfortable with an attorney by knowing he or she takes part in voluntary attorney organizations.
For example, in addition to the Kentucky Bar Association, there is a Northern Kentucky Bar Association and a Cincinnati Bar Association, both of which offer CLEs and host meetings that allow attorneys in the same practice areas to get together and talk about the latest developments in the profession. Both groups also offer attorney referral services that vet an attorneys basic qualifications for each practice area before they make a referral. These are great places to start looking for an attorney!
The local and regional bar associations can tell you something else very important about an attorney as well. If you see an advertisement for an attorney in Covington, but cannot find him or her in the Cincinnati or Northern Kentucky Bar Associations, check further abroad. Is the attorney a member of the Louisville Bar Association instead? If so, you’ve just discovered an out of town attorney masquerading as a local attorney to pick up business. For obvious reasons, you don’t want an attorney that you can’t visit without making a three hour round trip. Pass the out of town attorney up and get someone local, who is familiar with the lay of the land.
Other Attorney Organizations
In addition to the bar associations, there are many other voluntary organizations you may want to call to get the scoop on your new attorney before you retain him or her:
Kentucky Justice Association – this statewide group focuses on the art of the jury trial, and its members are often regarded as the best of the personal injury attorneys in the state. Most members work with clients who have been in car wrecks, or who have products liability or medical malpractice cases.
Ohio Association for Justice – this is the Ohio version of the Kentucky group, above.
National Association of Consumer Bankruptcy Attorneys – this organization includes many attorneys that file Chapter 7 and Chapter 13 bankruptcy for average debtors.
Avvo.com – this is not an attorney organization exactly, but it attempts to rate attorneys by allowing clients and other attorneys to give feedback. Attorneys have a profile, which must be claimed. If an attorney does not claim his or her profile, or has not put any work into developing this profile, it may be an indication that the attorney is too overwhelmed with work. There is also a question and answer area where potential clients can pose questions to attorneys.
Justia.org – this website is similar to Avvo.com.
There are many, many more organizations out there. No attorney can be a member of every single one, so don’t visit just one and give up on an attorney because he or she doesn’t have a membership. Look around a bit, and you should find out what you need to know.
Referrals from Attorneys
If you have used an attorney in the past, and were happy with that attorney, go back to him or her! Even if you need a different kind of attorney, chances are that your old attorney will know a new one who can help. Never underestimate the power of a word-of-mouth referral to get the right attorney for you.
If you’ve never used Lawrence & Associates Accident and Injury Lawyers, LLC before, we’d be happy to work with you. If you have but need a new kind of attorney, we’d be happy to refer you to someone new. We are working hard for the working class, and we want to work for you. Call today!
Lawrence & Associates Accident and Injury Lawyers, LLC tried the first civil trial in Boone County court this year and walked away with a complete victory. The case, Webster v. Whalen, involved a motor vehicle accident with injuries and associated workers’ compensation claims. Appeal time is running for the other party, and we don’t know yet whether an appeal is pending.
In this trial, liability was admitted for a fender bender. The person claiming injuries filed for, and received, Workers’ Compensation benefits for a back injury. The Workers’ Compensation employer then filed a claim for subrogation benefits against the driver that rear ended the person claiming injuries.
Causation, meaning the link between the bad driving and the injuries, looked very bad. It was clear that the injured person had worked heavy manual labor for years before the accident, with associated complaints of back pain. Then the employer made him go back to the same heavy duty job, with mandatory overtime, for four months following the accident. Only after all that did the person seek further medical treatment for his back.
Lawrence & Associates Accident and Injury Lawyers, LLC represented the man sued by the employer, although we usually represent injured people. We felt that the man being sued did not cause the injuries, and had been sued frivolously. At the end of the trial, the jury agreed with us and returned a verdict against the employer. The injured man still receives his workers’ compensation benefits – after all, it appeared that his years of heavy duty work were the most likely cause for his bad back – but the employer does not get that money back from someone who is not responsible for the injury.
At Lawrence & Associates Accident and Injury Lawyers, LLC, we fight to win, and our clients are better off for it. We represent Kentucky and Ohio clients in all forms of automobile collision litigation. We’re Working Hard for the Working Class, and we’d be proud to represent you. Call today!
The surprise disappearance of a Workers’ Compensation check, or TTD check, is one of the most common reasons injured workers look for a lawyer. The TTD check is supposed to be about 2/3 of the injured workers’ average weekly wage (AWW), and is generally the lifeline saving injured workers from bankruptcy while they are in recovery. When the TTD check doesn’t arrive on time, it can throw even the most carefully managed finances into a tailspin. If your TTD check isn’t coming like it should, contact the insurance company first. If the Workers’ Compensation carrier doesn’t offer a good explanation, you may need a lawyer to set things right.
If your employer’s Workers’ Compensation carrier terminates your TTD benefits, they are supposed to send a letter to the Department of Workers’ Claims (DWC). The DWC then sends you, the injured worker, a letter explaining that benefits have been terminated. This is a clear sign that you need to get an attorney. However, some shady carriers don’t send a letter to the DWC as required by law. So even if you don’t receive a termination notice from the DWC, you should still contact an attorney if the carrier is not sending a regular TTD check.
Did the Workers’ Compensation Carrier Recently Ask You to See a New Doctor?
One of the Workers’ Compensation Carrier’s favorite tricks is to hire an “independent” medical examiner. These doctors are anything but independent. Often they aren’t practicing doctors at all, but rather medically licensed shills for the insurance industry. These doctors are generally hired when the insurance company decides an injured worker’s treatment has gone on too long, and wants to cut it off. The “independent” medical examiner generally finds that a worker is at Maximum Medical Improvement (MMI) and that further treatment is unnecessary, although the examiner will usually stop short of criticizing the treatment that another doctor has already performed.
MMI has two effects: it cuts off the injured worker’s further treatment, and cuts off TTD. For this reason, although the injured worker may not have been warned, the TTD check immediately stops upon the date of the examination. Since the workers’ compensation checks are usually only issued every two weeks, the injured worker doesn’t find out his or her TTD check has been cut off until weeks after the fact. A good Workers’ Compensation lawyer can often defeat this tactic by hiring a competing expert or simply using the treating doctor’s testimony against the insurance company’s examiner.
Did the Workers’ Compensation Carrier Contact You to Take a Statement?
Another common trick is using an injured worker’s own words against him or her. The person who calls you from the Workers’ Compensation company is an adjuster. Speaking to adjusters should follow a familiar rule: what you say can and will be used against you in a court of law. Some adjusters will ask misleading or confusing questions, or purposely take answers out of context, to justify cutting off benefits by claiming that an injury did not happen at work or that the injury was caused by the employee’s willful conduct.
Again, a good Workers’ Compensation attorney can beat this tactic by taking the matter to an Administrative Law Judge (ALJ) and revealing the adjuster’s tricks for what they are. ALJ’s are appointed officials with a great deal of Workers’ Compensation experience, and given the right evidence will often recognize a legitimate injury amid the confusion created by unscrupulous adjuster behavior. However, submitting evidence to an ALJ must be done according to the Workers’ Compensation Code and Rules of Civil Procedure, so it is best to hire an attorney before doing so.
Get a Lawyer and Protect Your Rights
Lawrence & Associates Accident and Injury Lawyers, LLC has represented thousands of injured Northern Kentucky and Greater Cincinnati residents. We are Working Hard for the Working Class, and we want to represent you. If you are missing TTD checks and don’t know what to do, please give us a call and see how we can help!
Everyday employees are injured while on the job and everyday employers and insurance companies try to deny those injuries have happened on the job because they are trying to minimize the value of claims. Our goal is to help our clients get the medical care they need to recover as much as possible. We want to share a recent case we handled to give you an idea of what we can do for our clients. We will supply as many details as possible while still respecting our clients need for privacy.
Our client from Dry Ridge, Kentucky went through an entire Workers’ Compensation claim with no problems. The adjuster was nice, the TTD checks came on time, and all the medical bills were paid. Everything went well until the end, when the Comp carrier offered a tiny amount to settle her claim. Our client realized something wasn’t right and called Lawrence & Associates Accident and Injury Lawyers, LLC to see if she was getting a fair shake on her settlement.
What We Did
Lawrence & Associates Accident and Injury Lawyers, LLC analyzed the claim and quickly realized that our client deserved far more to settle her Whole Person Impairment than the carrier was willing to give. We took on the case and assembled irrefutable proof that our client was owed far more than had been offered.
Our client was able to settle her case for $60,000, which was approximately ten times more than she had been offered before. Our client was thrilled and was able to get her money within two months of hiring Lawrence & Associates Accident and Injury Lawyers, LLC
Experienced Workers’ Compensation & Employment Law Attorneys
Lawrence & Associates Accident and Injury Lawyers, LLC have handled all types of workers’ compensation cases. Lawrence & Associates Accident and Injury Lawyers, LLC will work to build a strong and successful case for you.
Common Types of Work Injuries….
Back injuries and herniated discs
Head injuries and spinal cord injuries
Meniscus tears and other knee injuries
Shoulder injuries and rotator cuff damage
Complex regional pain syndrome
Exposure to toxic substances, including chemicals and mold
Carpal tunnel syndrome and other repetitive motion injuries
Construction accidents, including scaffolding collapses, falls and injuries caused by heavy equipment
If you lost a loved one in a work accident, we may be able to help you obtain survivor’s benefits. We know that there is simply no amount of money that can replace your loss, but we will work hard to get you the resources you need to make ends meet and begin moving forward in life.
A man was injured when a piece of construction equipment collided with his vehicle and crushed him.
A man was working on a motor vehicle when a truck struck the vehicle. The man was pinned between the two vehicles, and his hips and legs were broken.
A man was changing a tire on an Ohio road when he was negligently struck by another vehicle, resulting in life threatening injuries.
A woman was killed while driving due to spillage left on the road.
A man developed a rare nerve condition due to his employment, which made it impossible for him to use one arm.
A man was a passenger in a rental car when it spun out of control and killed him.
A barge worker (Jones Act Seaman) was climbing down a ladder from an empty to a loaded barge when the improperly secured ladder collapsed. The worker’s head injury which caused...
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