Worker’s Compensation Benefits Partly Denied for Injury Sustained in Boxing Match at Connecticut Casino: Martinez v. LeFrak City Management, et al

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327138_7229.jpgA New York appellate court upheld a partial denial of worker’s compensation benefits in Martinez v. LeFrak City Management, et al, finding that the claimant violated the state’s Worker’s Compensation Law and was therefore disqualified from certain benefits. The claimant filed for medical and loss of use benefits for an allegedly work-related injury. The court held that hospital records and other evidence showed that the claimant had not disclosed an injury sustained in a boxing match, unrelated to his work duties, about two weeks earlier.

According to the court’s opinion, the claimant, Edelmiro Martinez, worked as a porter for LeFrak City, an apartment development in Queens, New York. He was boxing professionally at the same time. Martinez reportedly fought in a match at the Mohegan Sun Casino in Connecticut on July 30, 2004 and sustained an injury to his left arm. Records from both the casino and the hospital showed that Martinez suffered a torn left bicep, and he reportedly learned that he would need surgery to repair the muscle on August 9, 2004. The court says that Martinez returned to work as a porter.

On August 18, 2004, Martinez told his employer that he injured his left arm at work. He had surgery to repair the bicep on August 20, and filed a claim for worker’s compensation benefits shortly afterwards. The final determination was that Martinez had a schedule loss of use of his left arm of thirty percent.

Widow of Heart Attack Victim May Recover Worker’s Compensation Benefits, According to the Connecticut Court of Appeals

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726216_95316198.jpgThe widow of a man who died from a stress-induced heart attack may claim worker’s compensation benefits, according to a ruling from the Connecticut Court of Appeals. The defendants in Wikander v. Asbury Automotive Group alleged that the plaintiff was ineligible for benefits because she did not file her claim within the time period required by statute. The worker’s compensation commissioner ruled for the plaintiff, and the Worker’s Compensation Review Board and the Court of Appeals affirmed the judgment.

The decedent, Thomas Wikander, was an employee of Asbury Automotive Group. He died of a heart attack while on a business trip in Texas on September 25, 2007. The medical examiner determined that stress from Thomas Wikander’s employment played a substantial role in his death. A cardiologist in Connecticut would later concur with this determination.

Thomas Wikander’s widow, Donna Wikander, filed a claim in 2008 for benefits from Texas’ worker’s compensation program. After Asbury denied liability and an attorney informed Wikander that Texas would not grant benefits for a heart attack, she did not pursue the claim. Wikander filed a claim for worker’s compensation benefits in Connecticut in September 2009, nearly two years after her husband’s death. Asbury did not file the form 43 used to dispute liability, so Wikander filed a motion to preclude them from denying liability.

Connecticut Court of Appeals Precludes Employer from Contesting Claim for Worker’s Compensation Benefits

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1219597_98382759.jpgAn employer is precluded from contesting an employee’s claims for worker’s compensation benefits, the Connecticut Court of Appeals ruled in Callender v. Reflexite Corp., because it did not meet its obligations under the Connecticut Worker’s Compensation Act to file a form officially contesting the claim or to begin payments within twenty-eight days. The defendant argued that the claim related to injuries on which the plaintiff had already made a worker’s compensation claim. The court found this argument unpersuasive.

The plaintiff worked for the defendant for close to twenty years, from 1987 until May 11, 2006. This case addressed two worker’s compensation claims. The plaintiff filed a claim in October 2005 for injuries allegedly stemming from “repetitive workplace trauma between 1987 and 2004,” involving a painful condition affecting her neck, both shoulders and hands, her right arm, and her lower back. The defendant filed form 43, a notice to contest the claim, and began making payments in a timely manner. The plaintiff continued working for the defendant after that claim, but eventually left her employment due to injuries. She went to the hospital on April 29, 2006 for back spasms and neck pain, and her last day of work was about two weeks later.

Connecticut Jury Awards $1 Million to Injured Worker for Retaliation Claim

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1337308_83303939_04032012.jpgA Connecticut railroad worker received a judgment of more than $1 million in damages in a jury trial against his employer, Metro-North Railroad. The plaintiff, Andy Barati, alleged that Metro-North retaliated against him by unlawfully firing him after he reported concerns with workplace safety. These concerns arose after Barati was injured. Using a federal law designed to protect whistleblowers, Barati sued the railroad. This case has important implications for injured workers who want to do their part to prevent future injuries.

Barati worked for Metro-North as a trackman at the Grand Central Terminal Loop Track. He was injured on the job on April 22, 2008 when a rail tie fell on his left foot after a jack allegedly failed, breaking his big toe. According to his complaint, he immediately reported the injury to his supervisor.

About two weeks later, on May 7, Barati says he received a “Notice of Disciplinary Trial” from his employer. He says he became subject to a formal disciplinary trial on May 30, and that Metro-North terminated his employment on June 17. He was only able to return to work on August 5, 2008, after he submitted to further discipline that remained on his permanent employment record and reduced his income and other benefits.

In October 2008, Barati filed a complaint under the Federal Rail Safety Act (FRSA) with the U.S. Department of Labor. FRSA prohibits railroad carriers from retaliating against an employee for making a good faith report of any injuries on the job or other matters relating to workplace safety. The law’s protections are administered by the Occupational Health and Safety Administration (OSHA), which issued an order supporting Barati in June 2009. This order allowed Barati’s lawsuit to go forward.

Barati filed his lawsuit in November 2010, claiming that Metro-North failed to use reasonable care to prevent injuries on the worksite where Barati’s accident occurred by failing to give safety briefings, to supervise employees sufficiently, to provide enough lighting, or to train employees to use rail jacks. These unsafe conditions led directly to his injuries, he alleged, and he asserted that Metro-North was liable for his injuries under the Federal Employers Liability Act (FELA). FELA allows compensation for railroad workers who suffer work-related injuries. He claimed damages in the form of medical costs, lost wages, diminished earning capacity, pain and suffering, and mental anguish. Barati further alleged that Metro-North violated FRSA by dismissing him after he reported his injury and safety concerns.

A jury awarded Barati $50,000 in compensatory damages for his pain and suffering and lost wages. It also awarded him $1 million in punitive damages. Barati’s attorney told the Wall Street Journal that this was the first verdict to rely on FRSA. Metro-North has indicated that it will likely appeal the verdict.

Construction Worker Paralyzed by a Drunk Driver Receives a Record Workers’ Compensation Settlement

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871543_58184821_02152012.jpgA Pennsylvania construction worker who was paralyzed in a 2001 hit and run accident has received a $3 million workers’ compensation settlement, believed to be one of the largest settlements ever. His case has been, to put it mildly, a rollercoaster ride through many of the most difficult obstacles a personal injury plaintiff can face. After a lawsuit for negligence and Dram Shop Act liability, he had to pursue a claim for bad faith refusal to pay an insurance claim. With the settlement of his workers’ compensation claim, perhaps the case can have some closure.

Joseph Tuski worked as a road flagman in Warminster, Pennsylvania. In January 2001, he was directing traffic around a construction site when a car driven by Michael Petaccio reportedly hit him, throwing him fifteen feet in the air and sixty feet away. Tuski suffered severe neck and spinal injuries, brain injuries, and broken limbs. The injuries rendered Tuski a quadriplegic, and he continues to require around-the-clock medical care.

Petaccio was the manager of the Ivyland Cafe and had reportedly just left there when the accident occurred. He fled the scene of the accident and was arrested several days later. He pleaded guilty to aggravated assault while driving under the influence in 2001 and received a prison sentence of one and a half to three years.

Tuski filed suit against Petaccio and the Ivyland Cafe, alleging that Petaccio was negligent and therefore liable for his injuries, and that the Ivyland Cafe was liable under the Dram Shop Act. This law allows someone injured by a person under the influence of alcohol to recover damages from the person or business that served the person alcohol, if they did so when the person was already visibly and unreasonably intoxicated. In early 2004, a jury in Philadelphia awarded Tuski $75.6 million in compensatory and punitive damages, which Tuski’s lawyer at the time claimed was the largest verdict in a liquor liability case in Pennsylvania history.

Connecticut Worker Dies in Construction Accident

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A construction worker died from injuries sustained in a fall at a Stamford work site on October 25, 2011. The man was reportedly installing a roof at the new Chelsea Piers sports complex. In gusty wind conditions, and without wearing a safety harness, he fell 50 feet to his death around 1:00 p.m. Two of the man’s brothers were present at the worksite when he fell. Emergency responders said that he was unresponsive when they arrived at the scene.

The Occupational Safety and Health Administration (OSHA) has shut down the site pending an investigation into the accident. The roofing project at Chelsea Piers is being overseen by contracting firm American Building Group. The Stamford Advocate notes that American Building Group has a history of OSHA investigations over the past several years, including violations related to scaffolding in 1999 and 2005. An August 1999 inspection led OSHA to cite the company for problems with scaffolding, electrical systems, and a shortage of personal protective equipment. It fined the company $5,400 for six violations. In 2005, OSHA fined the company $7,050 for scaffolding and heavy equipment problems. The most serious violation came in 2006, when OSHA found that the company had not adequately protected workers at an excavation site and fined the company $20,000.

Since the investigation by OSHA is still underway, it is premature to do any more than speculate on how liability may ultimately be apportioned in this case. Key questions involve the employment relationship between the worker and the general contractor, the involvement of other subcontractors in any conditions leading to the accident, and negligence on the part of the worker that might offset a contractor’s liability. The answers to most of these questions are not known, either because investigations are underway or information is not available from the media. Still, they are worth exploring.

Workers Compensation, Lien issues and Personal Injury Claims

It is fairly common for workers injured on the Job to have both workers compensation claims and third party personal injury claims as well. The scenario can present from car and truck accidents while engaged in employment responsibilities, construction site mishaps with general contractors responsible for the safety lapses causing injury and sometimes factory workers hurt because of defective machinery or equipment. In such instances it is helpful if the lawyer handling the file has familiarity and competence as to both in order to maximize both the gross level of recovery and the net recovery after taking into account and negotiating lien issues that are present whenever the employer’s workers compensation carrier pays for medical bills incurred or lost wages.

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Connecticut Companies Designated Model Workplaces by OHSA Not Models of Safety

OSHA’s Voluntary Protection Program (VPP) recognizes plants and other sites as model workplaces that demonstrate the “highest levels” of employee protection and safety. Aside from being a great public relations tool, “star” status in the VPP program exempts work sites from regular inspections, and protects the companies operating them from punishment for standard violations if the violations are promptly corrected. Once in VPP’s star program, companies are re-evaluated every three to five years.

So one would think that companies with “star” status in the VPP program would have exemplary workplace and employee safety records? Turns out that is not the case in Connecticut. For example, Covanta Energy operates a waste-to-energy plant in Wallingford, Connecticut. In 2007, while an application by Covanta for recognition of the plant by OSHA as a model workplace was pending, one of the plant’s employees, Robert Gootkin, was pinned against a wall and crushed to death by a hopper lid. According to the victim’s brother, Gootkin had been working a 12-hour overnight shift alone when the accident occurred, and it took facility personnel 30 minutes to respond to alarms that were triggered by the accident. In response to the accident, the Connecticut legislature passed a bill requiring operators of solid waste facilities to have at least two employees or a camera in the work area when waste is being fed into a hopper. Covanta lobbied against the bill.

Safety In The Work Place-

One can hardly doubt that persons who have sustained serious work site injuries, some that have led to their Death, by their pursuit of lawsuits beyond the mere assertion of workers compensation claims have fostered awareness and safety for many. The Triangle Shirtwaist Factory Fire that occurred in the year 1911 was one of the most tragic industrial accidents in U.S. history. 146 workers lost their lives, many were young female immigrants.
The factory conditions were so deplorable and unsafe that a criminal investigation and charges were filed but the owners of the Factory were acquitted. However, they were sued for civil damages-monetary compensation for those that lost their lives and brought wrongful death claims which they won. The American Society of Safety Engineers(ASSE) was also founded, in part, because of this event and made efforts to bring attention to the horrid conditions which the workers were having to work in.

Wrongul Death- A To Do List

For the surviving family members of someone killed in a car accident, construction site mishap or any other situation where the fault may lie with another Entity or Individual there is often a knowledge gap about what to do. In Connecticut, an individual that has died is no longer a recognized legal entity. Rather, it is their Estate which may act through an individual appointed by a Probate Court commonly referred to as an Administrator or Executor. The Probate Court system is accessible and the clerks are generally knowledgeable and sympathetic with a desire to assist those who have experienced such a loss. Accordingly, it is usually a very good idea to have a responsible family member appointed as the Adminsitrator, often times the Executor named in the Will should that exist is a good candidate for this position of Trust.