Answer provided by Rex Bush, webmaster of this blog’s affiliated website:  Utah-Personal-Injury-Attorney.com.  Click here Utah Injury Attorney to visit our home page and access other relevant articles on Utah injury law.

Q.  Someone speeding down the turning lane, to avoid stopped traffic hit me and took off the whole front end of my car as I was pulling out into a space a driver

had left me. we were stopped to look with just our nose out and he hit us. the officer said it was my fault.   But he was speeding and not paying attention. and don’t you have to be within a certain footage of your turn to be driving in that lane anyway? and isn’t there something along the lines of driving for the conditions of the road?..there was heavy traffic and he was speeding past all the stopped vehicles very far from his turn.

A.  Drivers are not supposed to travel in the “median” (or the “parking strip”) but anyone who has been driving for more than a week knows that they do. So when you failed to look before pulling into the path of the other driver, you were negligent and, according to the investigating officer, guilty of a traffic offense. The other driver should have been cited also. But since you were both negligent it will be difficult for you to get the other driver’s insurance to fix your car.

Answer provided by Rex Bush, webmaster of this blog’s affiliated website:  Utah-Personal-Injury-Attorney.com.  Click here Utah Injury Attorney to visit our home page and access other relevant articles on Utah injury law.

Q.  I sustained a permanent partial disability to my upper and lower back in Jan. ’99. I was a middle school science teacher and one of my students intentionally took a few screws from my desk and left it to later collapse on me after class. I filed a workers comp claim, which paid a percentage of lost wages a few years ago. Now it only pays for 2 of my meds and an occasional dr. visit. I filed separately and now receive minimal Social Security disability benefits. My question is: Can I now file a personal injury claim against the school system, since I am still suffering with my back condition; despite the workers comp history with the same injury? Case in point– I recently underwent lower back surgery on 10/30/07 and was hospitalized for 8 days. I now have new meds, physical therapy and a hospital bill for $38K and a neurosurgeon bill for $5K because the dr. and hospital were out of network for my Medicare. Please advise.

A.  General rule is: you can’t sue your employer if you are injured on the job and your employer has worker’s comp coverage. You can sue the boy who removed the screw or possibly even his parents. You would want to argue that he was negligent or reckless as intentional torts are not usually covered by insurance. If the boy’s parent’s own a home it is very possible there could be coverage that could pay your claim

Answer provided by Rex Bush, webmaster of this blog’s affiliated website: Utah-Personal-Injury-Attorney.com. Click here Utah Injury Attorney to visit our home page and access other relevant articles on Utah injury law.

Q.  On november 7, 2006 I was injured at work due to negligence and being in violation of OSHA regulations. This happened in the state of Utah. I have been told on countless occations that Utah is the worst state in the US. But I was also told if they were in violation of OSHA regs I would have a case. My question is since I can’t find a lawyer, I would like to file a lawsuit

on my own, I need some direction. Can you help? No state should be above the law. I made a comment to one lawyer in Utah recently that they, Utah could get away with murder, he agreed. I’m glad I taped that conversation. Thankyou;–name removed–

A.  Worker’s compensation laws say that if you are injured on the job you cannot sue your employer or a fellow employee who caused the injury. You have to make your claim under worker’s compensation insurance. There are very few exceptions to this and unless your facts come under an exception you are stuck with worker’s compensation. If you need a referral to a worker’s compensation attorney contact me and I’ll give you one.

With information provided by worker’s comp lawyer Hal Davis, this article was written by Rex Bush, webmaster of this blog’s affiliated website: Utah-Personal-Injury-Attorney.com. Click here Utah Injury Attorney to visit our home page and access other relevant articles on Utah injury law.

You were injured on the job by the fault of a “third-party” i.e. the person who caused your injury was not your employer or a fellow employee we can still help you.  Or, if your employer or a fellow employee was at fault but your employer did not have worker’s compensation coverage then we may be able to help you.

But,  if the injury was caused by the negligence of your employer or a fellow employee and your employer was insured, then we will refer you to a lawyer who specializes in the area of worker’s comp.

This law is known as the “Exclusive Remedy Doctrine”.  Just to make sure it is clear, here is another summary of it:  If an employee is injured at work, and his employer or a fellow employee is at fault and his employer has workers’ compensation insurance, the employee is only entitled to workers’ compensation benefits from the insurance company. He may not sue his employer or a fellow employee for negligence under tort law.   Tort law is the branch of civil law (i.e. non-criminal) that tells us what our rights are if someone carelessly or intentionally injures us.

Causation – The injured employee must prove (a) that his injury occurred in the course and scope of his employment (legal causation), and (b) that the medical treatment he is receiving is related to that industrial injury (medical causation).

Benefits – Most injured employees are astonished to learn that there is no compensation under workers’ compensation insurance for negligence of the employer, for loss of future earning capacity, for pain and suffering, or for insurance bad faith. With rare exception, an injured employee is entitled only to the following five benefits. Even these benefits are awarded begrudgingly by the insurance company only after a bought-and-paid-for insurance medical exam.

* Death benefits (to the family, if killed)
* Medical expenses for life (if “reasonable and necessary” to treat the injury)
* 67% of wages (tax free), while unable to work (cap is $631 per week this year)
* Disability payment (based upon a whole-person impairment rating given by a doctor)
* Lifetime disability payment (if unable to work ever again, for any employer)

Attorney’s Fees – By administrative rule, attorneys may charge clients 20% of any disability benefits recovered (excluding medical expenses) up to $24,275, 15% of any disability benefits recovered between $24,275 and $48,550, and 10% of any disability benefits recovered above $48,550, but in no case more than $12,250. Fee percentages and the cap increase slightly if an appeal is made to the Court of Appeals. Many attorneys do not find this work profitable, which suits insurance carriers just fine, because injured workers have a hard time getting (or cannot get) legal help.

Time – The biggest enemy of an injured worker is time. It takes between five and six months after filing a request to get a hearing date. It takes three months to get an interim ruling from the judge, another five to nine months to get an opinion from a medical panel, or “jury” (if there is a medical issue—rather than a legal or factual issue–in dispute), another three months to get a final ruling from the judge, another 18 months if either side makes a motion for review (appeal) to the Labor Commission, and several years more if the case is appealed to the Utah Court of Appeals.

The Utah law firm of Davis, Halston & Benjamin consists of an excellent team of worker’s compensation attorneys . Our lawyers understand the complex legal issues involved in workman’s comp claims and offer sound legal counsel on important matters such as death benefits, medical expenses & lifetime disability payments. Contact our Salt Lake City worker’s compensation lawyers today for counsel on your employment law case.

FAQ:

Q.  When can an injured worker make a claim against his employer or a fellow worker?

A.  1) only when the employer is uninsured, and probably never against a co-worker, unless it is a criminal act.   (If employer is uninsured, you can sue the employer under regular tort law.)

Q.  Would an OSHA violation by the employer be a criminal act that would allow the employee to sue the employer?

No. Workers’ Comp law provides that there can be a 15% penalty on the workers’ compensation award if the company violates safety standards. The whole reason workers’ compensation exists is to immunize employers from lawsuits in tort law.

Q.  A friend had an impairment rating after his first shoulder surgery.  Now, more than three years after the first surgery, he needs a second surgery.   Can his impairment rating now be updated?

A.  Yes, it happens all the time. he just needs to get a doctor to update his impairment rating. the amount he receives will be reduced by the amount he received for his previous impairment rating.

Q.  Is injured worker covered by comp even though injured during 24 hour layover?

Injured worker was training to drive truck for CR England.  While in Florida on 24 hour layover after dropping off load he was assaulted by his trainer who was arrested by police and fired by England
A.  Probably. I suspect he’s covered by the “continuous coverage” or “traveling employee” rule.   See Buczynski v. Industrial Commission of Utah, Court of Appeals of Utah, 934 P. 2d 1169 (1997).

This information provided courtesy of:
Halston T. Davis
DAVIS, HALSTON & BENJAMIN, PLLC
4543 South 700 East, Suite 100
Salt Lake City, UT 84107
(801) 746.0290
(801) 303.7330
hal@dhbattys.com

Visit their website at www.dhbattys.com

Be sure to tell them you got our name from Rex Bush, Bush Law Firm.  (He sends me a Cafe Rio gift card every time I send him a referral and I like to share them with people who refer to me.)