Articles Posted in Personal Injury

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In a workplace injury lawsuit relevant to future Indiana work injury claims, the U.S. Court of Appeals for the Seventh Circuit ruled that a company responsible for equipment maintenance could not be held liable for a forklift injury resulting from failure to warn an employer about the risk of not installing an alarm. There was no question the forklift wasn’t designed, manufactured or shipped to the original purchaser with a backup alarm. Further, as of the date of the accident (in mid-2013) there was no regulation that required the equipment to have one. Defendant did service the forklift several times prior to an accident (during which the heavy machinery rolled over a worker’s foot). The most recent had been just a few months prior. The technician couldn’t recall if the forklift had a backup alarm, but if it did, he didn’t make note of it in his report.

After the accident, the injured worker’s employer asked another company to install a backup alarm. That company’s technician affirmed there was no alarm already on it.

Although workers’ compensation is the exclusive remedy a worker has for an Indiana work injury (same goes for workers in Illinois, where this accident occurred), what is allowed is third-party liability. As Munster work injury attorneys can explain, this means that if a third-party – someone other than an employer or co-worker – was responsible for causing an injury that occurred in the course and scope of  employment, that party can be held liable for negligence. Workers aren’t compensated twice, but a third-party negligence claim may entitle injured workers to collect more than they would otherwise be able to collect from workers’ compensation (which is generally limited to a portion of lost wages and medical bills).

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Indiana work injuries have been on the decline in recent decades, with roughly 60 percent fewer non-fatal occupational injuries and illnesses reported statewide since 1992. Still, a recent annual report by the Indiana Department of Labor reveals there were still 84,300 reported work injuries in Indiana, with nearly half requiring one or more days away from work or days with job transfer or restriction.

If you are an employee injured at work, your exclusive remedy against your employer is usually workers’ compensation, outlined in IC  22-3-2 through IC 22-2-6, which gives you just 30 days to submit notice to your employer and 2 years in which to formally file a claim for benefits. This assumes, of course, that you are actually an employee and not an independent contractor (a designation on which your employer doesn’t have the last say and which is often legally disputed). It also assumes your injury occurred in the course of and arose out of the scope of your employment. Workers’ compensation is meant to cover all related and reasonable medical expenses, a portion of lost wages, funeral expenses and other benefits, depending on the circumstances. However, securing full benefits to which you are entitled is often a challenge. In some cases, workers may have grounds to pursue a personal injury lawsuit for third-party liability if someone other than an employer or coworker was at-fault. An experienced work injury lawyer in Gary can best help protect your rights following a serious on-the-job injury.

The Indiana Department of Labor reports the most hazardous industries in the state for work injuries include agriculture and forestry, healthcare and social assistance, manufacturing, waste management, transportation and warehousing, arts/recreation/entertainment, accommodation and food service.  Continue reading

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Indiana work injury claims are typically resolved through an employer’s workers’ compensation insurer. It’s only with disputed work injury claims that the potential need for litigation arises. There is an Informal Dispute Resolution process, and those not resolved through that can only move forward if an injured worker files an SF29109 form, at which time the case is assigned to a hearing member for the Indiana Workers’ Compensation Board. If either side disagrees with that decision, an appeal can be made to the full workers’ compensation board panel, then to the Indiana Court of Appeals and lastly to the Indiana Supreme Court. With an experienced Highland work injury lawyer focusing on your case, it may not be necessary to press it that far, but you need to know your attorney will fight for your best interests and refuse to settle if you aren’t getting fair treatment.

It is worth noting too that while workers’ compensation is the exclusive remedy available for an injured employee against the employer, separate third-party claims can be asserted against non-employer defendants alleged to have been negligent in causing the accident/injury.

Still, not all workers are treated exactly the same under federal or state law. Indiana railroad workers are among them. When one of Indiana’s hundreds of railroad employees suffers a work-related injury, they must recover for injuries under the Federal Employer Liabilities Act, or FELA, as outlined in 45 U.S.C. 51, liability of common carriers by railroad for injuries to employees from negligence. Continue reading

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Scooters in Indiana have become  increasingly popular for recreation and commuting, but Indiana scooter injury lawyers are concerned we’ll be seeing an uptick of crashes, particularly those involving scooters with cars or trucks. Although the bright yellow bicycles of the Pacers Bikeshare have been integrated for the last four years (slated to double in size in the next two years), urban vehicle operators still aren’t used to seeing people on the even smaller-profile scooters gliding along the roadways and through crosswalks.

Bird electric scooter-share’s dockless scooter service in Indianapolis launched in the spring along Mass Ave. and also in Irvington, relying on smartphone apps to track and bill users.  Licensed adult locals and visitors alike have been making use of them for leisurely downtown tours in Fountain Square or City Market or a breezy ride along nearby bike paths like Pennsy Trail, though Bird scooters are actually advertised to those needing a boost on that “last mile” of their trek or short commute when it’s slightly too long to comfortably walk. They were so popular, the Indianapolis scooter market got competitive when Lime (formerly LimeBike, now in 50 cities globally) launched its Indianapolis scooter share, pricing itself low and muscling its way in to the Hoosier market.

Our injury attorneys in Gary and Munster (who also serve Indianapolis) see the biggest safety fear centering on the fact that scooters are going to be interacting with often crowded downtown traffic. Riders are instructed to use the bicycle lane (staying off sidewalks and roads) and park well clear of public roads (a directive users aren’t strict about following). All this puts riders at risk of an Indiana scooter crash.

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Most workers in Indiana are supposed to be covered by worker’ compensation insurance, paid for by their employer to cover reasonable medical expenses and a portion of lost wages if they’re hurt at work. There are a few exceptions, but often when companies pay cash under-the-table, they are breaking the law (and probably don’t have workers’ compensation insurance for you). That means if you’re seriously injured at work, you should discuss your legal options with an Indiana personal injury attorney right away.

Some companies specifically avoid paying above-board wages because then they’d incur other costs, like insurance for unemployment and workers’ compensation, requirements to pay overtime, administrative payroll expenses and other costs. Others will wrongly classify “employees” (entitled to these benefits) as “independent contractors.” But even independent contractors usually have clear written terms and are asked to file a tax form. Many times, companies will pay cash specifically for illegal immigrant workers, but you should know that your immigration status has no bearing on the Indiana workers’ compensation or personal injury benefits to which you are entitled. If you are paid under-the-table and are hurt at work, your claim for benefits/ damages could be more complicated than a typical work injury case. An experienced Munster work accident lawyer can best help you navigate the system and obtain appropriate compensation.

Recently, the Indiana Court of Appeals dealt with one such case, wherein a worker was seriously injured and his small business employer, someone he’d worked for under-the-table for nine years in the logging industry, was killed in that accident.

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A missed diagnosis is one of the most common forms of medical mistakes made by doctors and other health care providers, accounting for a substantial number of Indiana medical malpractice lawsuits. One study published in the journal BMJ Quality & Safety revealed that nearly 12 million adults seeking outpatient medical care are misdiagnosed, which works out to about 1 in every 20 adult patients. Roughly half of those have the potential to result in serious harm.

Recently in Indiana, a federal jury awarded $15 million to a woman (and her husband) who claimed a radiologist and imaging center were negligent in failing to identify a tumor for a full 18 months, resulting in a substantial reduction in her survival chances. Following a four-day verdict, jurors in the case of Webster v. CDI Indiana, LLC, before the U.S. District Court Southern District of Indiana Indianapolis Division, jurors found the diagnostic center was liable for the conduct of the doctor who didn’t find the tumor in a CT scan she underwent in late 2014. The tumor was ultimately discovered in 2016 – more than a-year-and-a-half later.

The initial question in these medical malpractice lawsuits isn’t necessarily whether doctors or other health care providers got it wrong or even how severely you were hurt. The issue is whether those actions met or fell short of the applicable standard of care, given provider’s specialty, education, resources and region. Jurors were asked to consider whether a similarly-situated, prudent provider would have responded the same in similar or identical circumstances. Here, jurors determined the doctor’s actions fell below the applicable standard of care, reducing plaintiff’s chance of survival, her options for treatment and inflicting serious physical pain and emotional suffering. Continue reading

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Less than two years ago, the Indiana Supreme Court issued two injury law opinions that reshaped the foreseeability criteria courts consider when weighing premises liability lawsuits.

Premises liability is predicated on the legal theory that businesses and/ or property owners have a duty of care to shield invited customers or guests from an unreasonable risk of harm. The element of a “duty of care” is the foundation for any lawsuit alleging negligence, as is the breach of duty and the fact that the breach caused the injury. In premises liability cases in particular, foreseeability of danger is what establishes the duty.

The new test model was outlined in a pair of 2016 rulings – Goodwin v. Yeakle’s Sports Bar & Grills, Inc. and Rogers v. Martin. It’s particularly relevant to those cases stemming from a third-party criminal attack on someone else’s property. In both cases, the state high court established that courts must decide as a matter of law (by the judge) rather than as a matter of fact (by the jury) whether the injury in question was foreseeable by analyzing a broad type of harm and a broad type of plaintiff. This differs substantially from the previous approach, which relied on fact-sensitive inquiries. Those two cases have been cited as precedent-setting in a number of recent Indiana premises liability cases. Continue reading

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Defendants in a Munster wrongful death lawsuit are asking the Indiana Supreme Court to weigh in on whether a woman who drowned in the pastors’ pool was an independent contractor or an employee of the pastors or the church. The answer to that question matters because under Indiana’s Workers’ Compensation Law, workers’ compensation death benefits would be considered the exclusive remedy for an employee killed in the course and scope of employment. However, independent contractors in Indiana aren’t entitled to workers’ compensation, and they would thus have the right to file a lawsuit against the company. 

As our attorneys can explain, there are some key differences between the two types of cases. On the positive side, with workers’ compensation, one does not need to prove the defendant/employer did anything wrong (i.e., was negligent). It’s a no-fault system, and payments should be made as long as the injury or death arose out of and in the course of one’s employment. However, recipients of death benefits cannot pursue certain types of damages, such as pain and suffering, loss of life enjoyment, or loss of consortium. Those damages are available in an Indiana wrongful death case.

Here, the plaintiff (the decedent’s mother) is asserting she was an independent contractor, and therefore the exclusive remedy provision of the law doesn’t apply, so she is free to pursue her claim in state court. The church is arguing she was an employee, and the exclusive remedy rule does apply, so the claim must be weighed by the state’s Workers’ Compensation Board.

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The pre-existing obesity and smoking habits of an Indiana pizzeria employee injured at work didn’t prevent the worker’s ability to receive temporary total disability benefits when the employer failed to produce evidence showing the weight problem or other issues impaired his health or required medical intervention prior to the workplace injury.  This was supported by a 2009 ruling by the Indiana Court of Appeals that highlighted a common tactic by employers and workers’ compensation insurers following a workplace accident resulting in injury or illness. It involves turning it all around on the worker, making it seem as if his or her own “poor choices” or habits were in fact the catalyst for the worker’s health problems. It’s an approach designed to eliminate or minimize the insurer’s liability for the worker’s injury – even when there is no question a work accident happened and resulted in injuries.

Injuries are common among restaurant cooks, according to the U.S. Bureau of Labor Statistics. There are approximately 26,500 restaurant cooks in Indiana, with injuries regularly reported, including:

  • Slips, trips, and falls;
  • Burns;
  • Cuts;
  • Exposure to chemicals;
  • Assault (due to basic lack of security);
  • Ergonomic hazards.

But that list isn’t exhaustive. In this Indiana workers’ compensation case, the claimant was employed as a cook at the defendant restaurant when he was accidentally struck in the back by a freezer door. As a result of this incident, he suffered a lower back injury. The injury was immediately reported, and the cook was sent for medical treatment. At the time of this incident, the 25-year-old plaintiff was six feet tall, weighed about 340 pounds, and smoked roughly 30 cigarettes daily.  Continue reading

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An Indiana nursing home neglect lawsuit alleges the facility responsible for a 75-year-old amputee resident’s care failed in its duty, resulting in her death as a result of a fall in the shower. 

According to CNHI News Indiana, the resident, who had one leg, was taken to the shower by a staff member in March 2017 and left to stand on her single leg with no assistance. Nursing home staffers reportedly found her some time later on the shower floor, her leg twisted and in agony. She was diagnosed with a displaced spiral fracture of the femur, although initially, staffers decided to place her back into bed before calling 911. Her family alleges the staffers told dispatchers they did not witness the fall, but they later filed false documentation indicating they had seen the fall, which occurred because she let go of her wheelchair. She underwent surgery two days later, remained in a debilitated state for months, and then died in June 2017. That incident reportedly marked her 16th fall at the facility since she entered it two years earlier. A wrongful death lawsuit alleges her passing was a direct and proximate result of nursing home staffers’ actions and inaction, and further that state health department citations for violations of federal quality-of-care regulations are evidence of callous disregard for patient rights, safety, welfare, and dignity.

Indiana nursing home falls are a serious problem affecting elderly and disabled residents. The U.S. Centers for Disease Control and Prevention reports 1,800 older adults in nursing homes die annually from fall-related injuries. Those who do survive often suffer hip fractures and head injuries that lead to serious and permanent disabilities.

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