The Brewer Law Offices P.C.

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The Brewer Law Offices P.C.

If a work-related injury occurs because of a condition in the employer’s building, and the employer takes care of its own building, then the injury gives rise only to a work comp case. An example of an injury that did not have a third-party claim was when a school handled its own maintenance issues. There was water leaking onto the floor, and the maintenance worker employed by the school didn’t clean it up right away. Another employee fell in the water and was injured. Because a school employee, and not an outside company, was in charge of keeping that area dry, the injury was compensable as a work comp claim. There was not a third-party liability claim because the school itself was responsible for taking care of its own maintenance.

However, if the building owner contracts out the care and maintenance of the building there is probably a third-party claim. For instance, my office is in a bank building, and the bank has a contract with a cleaning company. The cleaning company will frequently mop the steps. If I leave my office and fall down the wet steps, I have a work comp case. I may also have a case against the maintenance company because the maintenance company left the steps in an unsafe condition. These types of cases are fact-specific because it depends on who owns the building and who takes care of the building.

Is The Claim Still Compensable If It Was The Employee’s Fault But Not Horseplay?

The claim is still compensable if it was the employee’s fault as long as it is not horseplay. Worker’s compensation is a no-fault law. It doesn’t matter if it’s your fault, and it doesn’t matter if it’s the employer’s fault, it’s still compensable. The twist on that is if there is a safety rule violation. For instance, if a delivery driver is out delivering pizza but is not wearing a seatbelt, the driver is in violation of the law for not wearing a seatbelt. If that delivery driver is in an accident and sustains injuries, there can be a 50% offset to indemnity benefits because that person wasn’t following the law and may not have sustained injuries if he’d been wearing a seat belt.

What Happens When A Workers Comp Case Is Closed?

There are two different things that can happen when a worker’s comp case is closed. One is that the case “closes”, and the other is that the case “settles full and final.” Closure means that the employer has paid certain benefits but if the injured worker does not object to that Final Admission of Liability, the case closes. If the case is closed, an injured worker maintains the right to petition to reopen for up to six years after the date of injury, or two years after the last date of when permanent partial disability benefits would have been paid, whichever is later.

The difference is that a “closed” case can be reopened. Certain circumstances have to be met to reopen and usually an insurance carrier will initially deny reopening. If that happens then the issue of “Petition to reopen” has to be set for court. To reopen a case there has to be a link between the injury and the need for additional medical treatment if a worker is arguing a “worsening condition” in order to reopen a case. Very specifically a petition to reopen form has to be filed with the Division of Workers Compensation. Many times, injured workers accept statements made by adjusters that the insurance company will reopen their case. Talking to the adjuster is not enough. In order to meet the burden, the employee must file that Petition to Reopen form with the Division of Worker’s Compensation. Whatever you do, if you are near the end of the 6 year/2-year limitations, don’t wait. File that form right away.

For reopening, there’s a portion of the statute that addresses reopening. It provides different grounds to reopen a case, such as an error or mistake, overpayment, fraud, mutual mistake of material fact, or a change in condition. The type of claim often reopened claim is when an injured worker states that there’s a change in condition. A change in condition refers to a worsening of the condition. A worsening of condition isn’t just needing additional maintenance medical care like physical therapy to keep the worker at the maximum medical improvement. A “worsening of the condition” has to be a significant change, such as the need for additional surgery.

If the insurance company believes that there was an overpayment, they can petition to reopen the case to establish the overpayment and request that certain benefits be paid back by the injured worker. Fraud can happen on either side and is a basis to reopen the claim.

When an injured worker settles the case on a full and final basis the only two reasons the settlement can be reopened are for fraud and mutual mistake of material fact. The worker’s physical condition worsening is not considered a mutual mistake of material fact. The settlement documents specifically address that when the employee settles on a full and final basis, he or she is acknowledging that their work comp injury could get worsen, but they are electing to take the money and waive their right to reopen instead.

So, to be clear, if the claim has “closed” by way of final admission of liability, there are several different ways that it can it be reopened. One of the ways that a case can be reopened is due to the worsening of the condition. But when a person settles their work comp claim on a “Full and Final basis” they cannot reopen due to a worsening of the condition, and a worsening of the condition is not a mutual mistake of material fact.

Can I Re-open A Worker Compensation Claim After A Judge Or Jury Denied Benefits?

There are no juries in worker’s compensation cases. A single judge hears the evidence and makes the necessary factual and legal determinations. If the issue going to court is the compensability of a specific injury, once the judge determines that the injury is not compensable, the only rights that individual has are the appellate rights. Work Comp cases can’t be retried. There are certain appellate rights that go along with an Order from a judge, but other than that, a person cannot retry the same issue a second time around.

Compensable Claims for Preexisting Conditions.

An aggravation of a preexisting condition is considered a compensable claim if the worker’s work duties caused the need for treatment. For instance, if someone was treated for a back injury in 2012, regardless of whether it was work-related or not, when that person’s work duties later cause a new need for treatment, that is an aggravation of a preexisting condition. If the preexisting condition is work-related, then you have to look at the facts. Is there a worsening of the condition? Was there a full and final settlement? Did a new specific event at work cause the need for treatment of the pre-existing condition? Or, is it just the natural progression of the original injury and not work-related at all?

For more information on Premises Liability Vs Workers Comp Claims, an initial consultation is your next best step. Get the information and legal answers you are seeking by calling (303) 420-8080 today.

Amy L. Brewer, Esq.

Call Now For A Personalized Case Evaluation:
(303) 420-8080