Law Forum : Advantages / Disadvantages of Personal Injury Action vs Worker's Compensation Claim

Discussion in 'Law Forum - Prisons - Gun Ownership' started by legit-writer, Oct 23, 2012.

  1. legit-writer

    legit-writer Well-Known Member MEMBER

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    I Need You Guys' Viewpoints on this Hypothetical Situation

    ABSiblings Clyde Coger Fieldpea. I am sure you guys have good viewpoints and anyone else who may have a viewpoint let me know. Here is the situation and at the end, there are some questions below. Thanks in advance!

    Johnny Smith is the owner of a small accounting firm (Smith Accounting, P.C.) in the city of St. Louis, Missouri, and in addition to Johnny Smith the accounting firm employs five full time employees. The office is located on the 3rd floor of a downtown office building. This downtown office building is a six story building, and is owned by Smith Accounting, P.C.

    The office building is an older building, and many windows need to be replaced. The company intends to replace all of the windows with new energy efficient windows, but want to wait 2013 to make such expenditure. In March 2011 a window in the second floor became loosened from its track, and was not completely secure to the building. The employees informed Johnny Smith of this concern, but because of time constraints associated with the tax season, he did not do anything about it. (Johnny Smith worked for a construction company while attending college, and felt that he could fix the problem rather than paying a contractor to repair or replace this window.)

    The employees of Smith Accounting, P.C. are permitted to park in a parking garage across the street or at meter parking on the street near the office building. The employees are responsible for the costs of the parking, since the accounting firm pays a very generous wage above the average salary for similarly situated employees.

    Jane Doe is a secretary for Smith Accounting, P.C. and serves as Mr. Smith’s secretary. Ms. Doe has been an employee of Smith Accounting for five years and is considered a very valuable employee. Julie Everett is an administrative assistant and performs office duties for Smith Accounting, P.C. She is a new employee and was not aware of the broken window.

    On May 1, 2011, Jane Doe parked at a meter across the street from the office building and left during an afternoon break to put money in the meter. A few minutes later, Julie Everett attempted to open the window that had become loosened from the track. As she attempted to open the window, the window pane broke away from the building and started to fall to the ground. Concerned that the window pane would fall to the ground, Ms. Everett grabbed a hold of the window pane with her right hand and yelled for help. (Ms. Everett’s office door was shut and no one heard her.)

    Ms. Everett held on to the window pane for several minutes and tried desperately to bring the window pane into the office building. However, the window pane was too heavy, and as she attempted to hold on to the window, she hit her elbow against the window frame, which caused her to experience instant pain and resulted in her letting go of the window pane.

    Unfortunately, at the moment Ms. Everett dropped the window pane, Ms. Doe was returning to the building and approached the main entrance (on a public sidewalk) the window pane struck her on the head and right arm, causing Ms. Doe to experience significant bleeding and to fall to the ground. Ms. Everett saw the incident and from the 3rd floor and Ms. Doe’s body appeared motionless.

    An individual called 911 and Ms. Doe was taken to the emergency room of a local hospital for treatment. She suffered serious injuries, including scarring to her face, right arm, shoulder, leg and hand. She now has difficulty using her right hand to perform fine motor skills, such as typing.Additionally, on the weekends she worked as a cheerleader for the St. Louis Rams and the scarring to her face and leg now makes her an unwanted cheerleader. She will require surgery to repair her right arm.

    Ms. Everett suffered an injury to her right arm, which was diagnosed as traumatic epicondylitis. (tennis elbow). Additionally, she is experiencing nightmares and inability to concentrate because of the incident. Ms. Everett says that at the moment of impact, she thought she had killed Ms. Doe when she dropped the window pane.

    Ms. Everett and Ms. Doe are not presently able to work and are not receiving any income or compensation. Also, they do not have group health insurance and are unable to pay for the medical expenses that they have incurred and the medical care they still need. They have asked Johnny Smith to pay for the medical care, but he refuses. Johnny Smith says he is not responsible because the incident was a freak accident; and the two women were not engaged in performing work for Smith Accounting, P.C. when their injuries occurred.

    NOTE: Epicondylitis is a painful and sometimes disabling inflammation of the muscle and surrounding tissues of the elbow, owing to repeated strain on the forearm near the lateral epicondyle of the humerus, as from violent extension or supination of the wrist against a resisting force. The strain may result from activities, as tennis or golf, twisting a screwdriver, or carrying a heavy load with the arm extended.


    What are the advantages and disadvantages of a personal injury action versus a workers’ compensation claim?

    What are the legal options available to the victims presented in the hypothetical (Ms. Everett and Ms. Doe)?

    Should the women file a workers’ compensation claim or a personal injury action?

    If you represented Ms. Doe would you want to proceed under workers’ compensation or as a civil action? Why?
     
  2. Clyde C Coger Jr

    Clyde C Coger Jr going above and beyond PREMIUM MEMBER

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    Exclusive remedy is at play here, as well as State laws... Hopefully, this link will help; if this is something real:

    http://www.attorneys-usa.com/workers_comp/exclusive_remedy.html

    Peace In,

     
  3. legit-writer

    legit-writer Well-Known Member MEMBER

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    yes sir. thanks for the link. i want your view points though to the questions. i found this to be interesting so i thought i'd post :) whoever changed the Title to this thread, thanks bunches!
     
  4. Clyde C Coger Jr

    Clyde C Coger Jr going above and beyond PREMIUM MEMBER

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    My apologies legit-writer, I overlooked that this is a hypothetical situation... but all questions point to the intricate law involved, which is why I gave you the link; take your time and absorb the law for answers to the questions...

    Peace In,




     
  5. Asomfwaa

    Asomfwaa Well-Known Member MEMBER

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    I don't study the Law. But as it were "Legal" is not always "Moral." So, for instance, if the Window was that Broken, it would have been "Moral" to at least label how it was dangerous to even attempt to open it. However, the Law Profession is about Legality. If it's not "Illegal" then you can't tell the Judge anything. So were I a Lawyer, I'd review past cases or past legislation on employers necessarily informing employees of hazardous work conditions. As I wrote it--it sounds like it should be on the books.

    That said, I'd explore the question from there--if I were a student of the Law.

    Sister legitwriter, you're studying to be a Personal Injuries Lawyer?
     
  6. legit-writer

    legit-writer Well-Known Member MEMBER

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    I'm not sure what form of law I will be going into yet. I have my options open now and paralegal is on the agenda in the meantime.
     
  7. Fieldpea

    Fieldpea Well-Known Member MEMBER

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    What are the advantages and disadvantages of a personal injury action versus a workers’ compensation claim? Offhand, I actually don't know; however, if I were either Ms. Everett or Ms. Doe, I do know that I'd find myself a personal injury lawyer right away. A *reputable* one, too. I'd be predisposed to follow the lawyer's advice. I'd do any/all filings my lawyer recommends, and in whatever order my lawyer recommends.

    What are the legal options available to the victims presented in the hypothetical (Ms. Everett and Ms. Doe)? From the above example, pathways to legal relief look to be different for each woman. Ms. Everrett was *on the job* at the time the window malfunctioned. Ms. Doe wasn't. Ms. Everett *might* be advised by a personal injury lawyer to file for worker's compensation (to protect her position at the firm as much as to continue receiving some kind of immediate salary replacement). In terms of the malfunctioning window (and the fact that her employer had no posted warning), she might have personal injury redress, too, though offhand, iono, OK? State laws come into play.



    As for Ms. Doe, she was outside (not on the job) at the time that she was struck by the firm's window pane. She was injured while standing on a public sidewalk, too. To me, this means that her pathway to redress would be similar/same as if she had no relationship with the firm, yet through neglect she is injured from the window pane malfunction. She should see a personal injury lawyer right away.



    Should the women file a workers’ compensation claim or a personal injury action?(see above answer).

    If you represented Ms. Doe would you want to proceed under workers’ co
    mpensation or as a civil action? Why? (see above answer)
    Hope all that helped.

    One Love, and PEACE (NOTE: Had to edit like crazy--posting this was a nightmare and I don't know why).
     
  8. legit-writer

    legit-writer Well-Known Member MEMBER

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    lmao that's what we writers do. we edit a lot. and thanks so much for your input.
     
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