Uninsured Motorist, No-Fault and Workers’ Compensation

Uninsured Motorist Insurance

The issue of a double recovery can arise when a worker is injured during, and in the course of, their employment as a result of a vehicle accident.

It is the general consensus, however, that a workers’ compensation insurance carrier cannot claim a lien on the funds recovered under the worker’s uninsured motorist insurance policy. The argument bolstering this position is that a worker has the right to procure an independent insurance policy at his own expense to supplement any benefits he may receive under the workers’ compensation system.

A second argument supporting the lien prohibition is that the payment of funds under the uninsured motorist policy is based on the contract between the parties rather than on a compensable injury.

No-Fault Insurance

In contrast to the uninsured motorist insurance policy is the automobile no-fault insurance policy. Generally, a no-fault insurance carrier may reduce its payable benefits by the amount of workers’ compensation benefits received by the worker. Of course, the insurer’s right to claim a reduction in the amount it owes under the no-fault policy is dependent on the worker’s injury being compensable under the worker’s compensation statute.

The determination of “compensability” and the amount that is payable is fairly dependent on the wording of the applicable statute in the respective states. For example, various no-fault statutes hinge the deduction on criteria such as workers’ compensation benefits that are “recovered,” “actually received,” or “entitled to be received.”

Get Help Today

The world of uninsured motorist insurance, no-fault insurance, and workers’ compensation is a tricky one. Our workers’ compensation team members would be more than happy to help you navigate these confusing waters. Call 844-781-PAIN or Request an Appointment now.

Social Security Disability Appeals Process

June 2015 Newsletter

Social Security Disability Appeals Process

If an individual disagrees with the decision of the Social Security Administration, an appeal can be taken. In the appeals process, all parts of the decision will be re-examined, including those parts that are favorable to the appellant. A written request for an appeal is required and it must be done within a specified time period. The individual may have a representative aid them in the appeals process. The representative will act on behalf of the individual, but is prohibited from collecting a fee for this service without first gaining permission from the Social Security Administration.

There are generally three levels of the appellate process. The first appellate hearing will be before an administrative law judge (ALJ). This initial hearing will focus on whether or not the individual is disabled, when such disability began, and whether it has ended. New information can be presented at the hearing, and the individual, his representative, or the ALJ can examine witnesses.

An appeal of the ALJ’s determination is taken to the Appeals Council. Though the Appeals Council reviews all appeal requests, it may deny an appeal if it finds the ALJ’s decision was correct. If the Appeals Council finds a review is warranted, it will either conduct the review itself or remand it to an ALJ for review. Finally, an individual whose appeal was denied by the Appeals Council, or who disagrees with its decision, may file a lawsuit in federal court.

Overpayments of Social Security Disability Benefits

May 2015 Newsletter

Overpayments of Social Security Disability Benefits

An overpayment of social security disability benefits arises when the Social Security Administration has paid the recipient in excess of the amount that was actually due. The Commissioner of Social Security is authorized to collect the overpayment either by reducing the recipient’s future payments, requiring the recipient or his estate to repay the excess amount, or by reducing the recipient’s tax refund by the excess amount.

When an overpayment results through no fault of the recipient, the Social Security Administration (SSA) will not seek reimbursement if it would defeat the purpose of the Social Security Act or would be against equity and good conscience. When determining the recipient’s “fault,” or lack thereof, the Commissioner will examine any mental, physical, educational, or language limitation from which the recipient suffers. The SSA’s policy declares that an overpayment is against “equity and good conscience” if the recipient has changed his position for the worse or relinquished a valuable right due to reliance on the notification of payment or the overpayment itself. The Ninth Circuit Court of Appeals has held the SSA’s definition to be unduly restrictive finding that it was Congress’ intention that a broad concept of fairness apply, taking into account the facts of each case.

Loaned Employees

April 2015 Newsletter

Loaned Employees

Responsibility for the payment of workers’ compensation benefits is a joint affair when one employer loans its employee to another employer. If the employee is a party to a contract for hire with the third-party employer, the work performed by the employee is principally for the third-party employer, and the third-party employer controls the details of the employee’s work, the third-party employer will be held responsible for workers’ compensation benefits should the employee become injured. The element of control is a substantial factor is determining the employment relationship between the parties.

The necessity of a contract for hire with the third-party employer is rather important. Principally, when the employee enters into an employment relationship with the third-party employer, he is giving up the right to maintain a common law negligence action. The relinquishment of such a right makes it imperative that the employee makes an informed and conscious decision to enter into a contract for hire with the third-party employer. To require otherwise would effectively allow others to eradicate the rights of the employee.

The nature of the employee’s work is a guiding force in determining workers’ compensation liability. If the employee’s work is solely for the benefit of the third-party employer, chances are good that compensation for the worker’s injury will fall to the third-party employer. However, where both employers have an interest in the employee’s work, with such work being beneficial to them both, the responsibility for workers’ compensation will fall to both employers.

Federal Employers’ Liability Act

March 2015 Newsletter

Federal Employers’ Liability Act
The Federal Employers’ Liability Act (FELA) is not a workers’ compensation statute. Rather, it is an alternative avenue by which railroad workers who are injured on the job may be compensated. The FELA allows an injured railroad worker to pursue a negligence action against his employer for lost wages, medical costs, pain and suffering, and permanent and partial disability. Should the injury result in the railroad worker’s death, the FELA also authorizes an action by the worker’s surviving dependents. The damages recoverable by a dependent include those for pain and suffering, funeral expenses, and that part of the worker’s earnings that were actually used to support the dependent. Notably, though, the employee’s contributory negligence will diminish any recovery.
Unlike workers’ compensation statutes where proof of fault is unnecessary, a recovery under the FELA requires that and more. Injured railroad workers must not only prove that the railroad engages in interstate commerce but also that the worker’s injury was caused by either the negligence of a railroad employee, agent, or officer or that the injury was caused due to a defect or insufficiency, caused by negligence, in the railroad’s machinery, cars, engines, tracks, etc. The basis for the action stems from the railroad’s duty to provide a safe working environment for its employees.
A FELA lawsuit can be brought in the state where the injury occurred or where the carrier resides or does business. A three-year statute of limitations window applies to actions under the FELA with differing dates of accrual based on the nature of the injury. For instance, the limitations period runs from the date of injury for personal injuries while the limitations period runs from the date of death in cases where the worker suffered a fatal injury. Likewise, the three-year limitations period for occupational diseases or cumulative injuries runs from the date that the worker knew or should have known of the disease/injury and its link to the worker’s employment.