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This happened on a rainy day (in New York). Security guards (employees
of my company) were standing on the carpet runners so I had to walk onto
the marble floor. Even though I was wearing rubber-soled shoes, I
slipped and fell. I tore my rotator cuff and have to have surgery on it.
There was a small pre-existing injury which would eventually need to
have been repaired, but in the fall I increased the tear to the extent
that I don't have use of my arm.
I'm using my medical insurance to pay for the surgery so I will have
perhaps about $500 in co-pays, etc. If I used worker's comp, surgery
would be delayed long enough that the recuperation would be more painful
and take longer because of the scar tissue that would develop.
I'm afraid that if I try to sue my employer, I would lose my job.
Thoughts?
Gary
--
E-mail to the above address is rarely read. If you want to contact me
directly, please send an e-mail to: gary at gdgoodman dot com.
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I'm using my medical insurance to pay for the surgery so I will have
perhaps about $500 in co-pays, etc. If I used worker's comp, surgery
would be delayed long enough that the recuperation would be more painful
and take longer because of the scar tissue that would develop.
I'm afraid that if I try to sue my employer, I would lose my job.
Thoughts?
It sounds like a work-related injury. There are lots of good lawyers (and some
bad ones) who specialize in workmen's comp, so I would consider speaking to
one, even though you fear losing your job. There probably is a way for you to
pay for the medical care now, out of your insurance and also out of your own
pocket, while still getting workmen's comp.
I would also consider speaking to your HR department: it is possible that they
may go ahead and pay your claim without stretching the rules do give your
employer ample scope for dragging out the approval process for months or even
years--- but such obstructionism is not REQUIRED. The company might also go
ahead and pay your claim without firing you--- since firing you can easily
become more costly for them than simply paying your claim would be. (Even no
lawsuit follows your dismissal, they have still have to recruit and train a
replacement employee and/or leave your job vacant for a while.)
*****
Tim Horrigan <horrigan@aol.com>
*****
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On Sat, 08 Jan 2005 14:57:05 -0500, Gary Goodman <XgaryXg7X@yahoo.com>
wrote:
This happened on a rainy day (in New York). Security guards (employees
of my company) were standing on the carpet runners so I had to walk onto
the marble floor. Even though I was wearing rubber-soled shoes, I
slipped and fell. I tore my rotator cuff and have to have surgery on it.
There was a small pre-existing injury which would eventually need to
have been repaired, but in the fall I increased the tear to the extent
that I don't have use of my arm.
I'm using my medical insurance to pay for the surgery so I will have
perhaps about $500 in co-pays, etc. If I used worker's comp, surgery
would be delayed long enough that the recuperation would be more painful
and take longer because of the scar tissue that would develop.
I'm afraid that if I try to sue my employer, I would lose my job.
The problem with taking that point of view with respect to on-the-job
injuries is that you are locked into the worker's compensation system.
Your employer takes on the obligation to take care of injured workers
on a no-fault basis; to compensate him for this, you give up the right
to sue him privately. Then, because the employer has responsibilities
to OSHA, state agencies, and the worker's comp carrier, it puts in
place a safety plan that, among other things, typically requires you
to report on-the-job injuries immediately. Some places, just failing
to report an injury on the job is itself an infraction for which you
could be disciplined.
It's possible you could lose twice: first, lose your case on summary
judgment because you didn't use the worker's compensation system in a
situation where your sole recourse is worker's comp; second, lose your
standing with your employer and maybe get terminated. A really mean
employer could come up with a case that you were terminated for cause.
Another possibility is simply to let things be. If you're getting
satisfactory care paid for by your insurance company, that's worth
something in itself. And if your insurance company believes that the
injury should have been covered by worker's comp, their subrogation
department will recover what it takes from the employer's insurer to
make them whole.
But before you do anything else, it's time to talk to a local worker's
compensation lawyer. You may already have prejudiced some of the
rights you have under the worker's comp system, and you don't want to
do anything inadvertently that takes away even more.
--
Not a lawyer,
Chris Green
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Gary Goodman wrote:
This happened on a rainy day (in New York). Security guards
(employees
of my company) were standing on the carpet runners so I had to walk
onto
the marble floor. Even though I was wearing rubber-soled shoes, I
slipped and fell. I tore my rotator cuff and have to have surgery on
it.
There was a small pre-existing injury which would eventually need to
have been repaired, but in the fall I increased the tear to the
extent
that I don't have use of my arm.
I'm using my medical insurance to pay for the surgery so I will have
perhaps about $500 in co-pays, etc. If I used worker's comp, surgery
would be delayed long enough that the recuperation would be more
painful
and take longer because of the scar tissue that would develop.
I'm afraid that if I try to sue my employer, I would lose my job.
Thoughts?
You can't sue your employer - worker's compensation is sole remedy. You
have no recourse to sue. In fact, your health insurance carrier likely
has a lien against worker's compensation for the money they've paid
out. If they are aware it is work-related, they can/will refuse to
authorize further treatement.
I don't understand why you believe the surgery would be / would have
been delayed if you went through WC. If it's medically necessary (and
in NY, you can choose your own comp doctor) there's no reason why it
WOULD be. And on top of it, by using your medical insurance, you
deprive yourself of the other benefits of worker's compensation -
notably, indemnity payments that compensate you for your lost wages
while you're out of work due to the injury/surgery, and permanancy
rating which will pay you a percentage of your wages in settlement of
the 'permanent' nature of your injury.
You need to rethink your strategy, here. You're doing yourself a grave
disservice, as well as making things messy for when your health
insurance carrier determines that this is a work related injury and
asserts their lien.
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Gary,
You were injured at work. You do not wish to use workman's comp but want
to be compensated for your medical expenses. I'm pretty sure that your
employer is shielded from suits because he provides workman's comp. But you
should look in your phone book since many lawyers will give a free initial
consult.
Good luck,
Dave M.
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[employee injured on the job, aggravating a pre-existing condition. employee
opts to use his own medical insurance, rather than worker's comp, supposedly on
the ground that comp care would be delayed and recovery would be longer.
employee fears that lawsuit against employer would result in termination.]
--------------
sorry.
under new york state labor law, if the employer merely provides worker's comp
coverage, the employee is *absolutely* prohibited from a tort lawsuit against
the employer. this is true whether the employee takes advantage of the
worker's comp benefits or not. the simple fact that an employer pays for and
provides such coverage insulates the employer from any direct action by the
employee
if an employee is injured on the job, worker's comp provides *full* coverage
(i.e., no co-payment) for *all* necessary medical treatment and medications,
and for lost wages in accordance with an established schedule. .
i suggest that you find a good comp lawyer, or a good personal injury lawyer
(who will refer you to a good comp lawyer), *immediately*.
note: although employee is barred from suing employer directly, employee may
sue anyone else (such as owner of the building, maintenance company, etc.).
these other defendants may implead (counter-sue) the employer only if employee
has sustained a "grave injury" as defined in the labor law. a torn rotator
cuff will not qualify as a grave injury.
tiger
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