Who Is Covered By The Workers Compensation Law?

Author: Howard Batt

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A lot of people who are injured on the job may wonder if they have the right to collect workers compensation. Some will not even report the injury, believing that if they are at fault in the injury, they do not have the right to collect for their injured status.
Depending upon what state you work in, those statutes can change, but for the most part, anyone who is injured on the job, with just a few exceptions, has the right to collect workers compensation for their injury, and at least to be covered prior to coming back to work.
In most cases when you are injured while working for an employer, regardless of who is at fault in the injury, you have the right to medical treatment and you do have the right to some type of compensation.
There are some exceptions to this rule of being able to have the compensation though. In some states if you are an independent contractor, even if you are working in the facility as part of a team, if you are injured on the job, you are not eligible for compensation from the company that you are working at, but you are eligible for the compensation for your injury from the company that you are employed for. For example if your electrical company is working inside a computer shop, if you are shocked at the shop, regardless of who is at fault, you can get immediate and lifesaving treatment, but you may not try to claim workers compensation from the computer store.
You are however, eligible to claim workers compensation from the electrical service that you work for. This means that someone will be paying your compensatory wages and your medical expenses but it will not be the company in which you were working.
Another group which is not able to use the workers compensation for a given company will be the independent contractor or temp worker. IF you are working as a temporary service or are booked in for what you do as a consultant or an independent contractor, you are not able to collect workers compensation even if you are injured on the job. This does of course depend on the contract under which you are working.
In addition, this does not mean that you should not report an injury. If you do not report within a reasonable amount of time, usually seven days, even if you may by some chance be able to get your compensation, you are going to be denied it.
Likewise, in most states, the compensation for injured workers will mean that you may not sue the company who is paying you the compensation. You will want to report any injury and to seek out treatment as rapidly as possible when you are injured and you may wish to seek out legal advice to find out the best way to proceed if you are injured at work or in a job in which you are a consultant.

The 5 Basic Elements of a Federal Worker Disability Retirement Application Form

Author:  Robert McGill

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A successful Federal Disability Retirement application under FERS or CSRS must meet the 5 basic elements of eligibility. The 5 elements can be further categorized into three main factors: (A) Basic time-sensitive requirements, (B) The sufficiency of the medical documentation, and (C) Impact upon the Federal position and the Agency. In preparing to file a Federal Disability Retirement application under FERS or CSRS, it is important to organize the potential submission into clear and concise categories, such that the ultimate presentation before the Office of Personnel Management is cogent, understandable, and incontrovertible, to the extent that it meets the legal standard of review: that of "Preponderance of the Evidence".
First, with respect to basic time-sensitive requirements: A Federal or Postal employee who anticipates filing for Federal Disability Retirement benefits must have completed either (A) 18 months of creditable Federal service if under the Federal Employee's Retirement Systems (FERS) or, a minimum of 5 years of creditable civilian service if under the Civil Service Retirement System (CSRS). This is a basic eligibility requirement which must be met.
Second, if a person meets the basic eligibility requirement as a Federal or Postal worker, then the next question to be asked and answered is whether the medical condition from which one suffers, will last for at least 1 year from the date that the application for disability retirement benefits will be filed with the Office of Personnel Management. Most treating doctors can provide a prognosis, within reasonable medical probability, of the length of time a medical condition, the symptoms, the impact upon one's physical or cognitive capabilities, will last. The chronicity of the medical condition, based upon clinical examinations, the diagnosis, and the experience of the treating doctor, will lead to the opinion of the doctor. One must remember that, in preparing a Federal Disability Retirement application, the potential applicant does not have to wait a year for the medical condition to last; rather, what is needed is an opinion from the treating doctor, that the medical condition is expected to last at least one year.
Third, the medical condition must occur while employed in a position subject to FERS or CSRS, resulting in a deficiency in performance, conduct or attendance or, if there is no such deficiency, the disabling medical condition must be "incompatible" with either useful and efficient service or retention in the position. There are obviously multiple "sub-requirements" contained in the umbrella requirement, as stated. For the Federal or Postal employee who is considering filing for Federal Disability Retirement benefits under FERS or CSRS, here are the important things to keep in mind: (A) Once the Federal or Postal employee has the minimum of 18 months of creditable Federal Service, the minimum eligibility requirement has been met. (B) If a medical condition occurs, it must have occurred during the time that you are a Federal or Postal employee (remember, though, that even if you are terminated, you can still file for Federal Disability Retirement benefits under FERS or CSRS up until one (1) year after being terminated or separated from Federal Service). (C) The medical condition must last for at least one (1) year. (D) The medical condition from which one suffers (either psychiatric or physical) must prevent one from being able to perform one or more of the essential elements of one's job. For this element, you need not overly complicate what it means. Basically, it means that the Federal or Postal employee who is applying for Federal Disability Retirement benefits has to be able to show that the medical condition somehow impacts one's ability to perform one's job. The term "incompatible" is more like a catch-all phrase which allows for a greater amount of flexibility. Remember that in the well-known case of Bruner v. Office of Personnel Management, 996 F.2d 290, 293 (Fed. Cir. 1993), the U.S. Court of Appeals there reiterated the applicable standard for disability retirement determinations, stating that one of the criteria was the demonstration of a "deficiency in service with respect to performance, conduct or attendance, or in the absence of any actual service deficiency, a showing that the medical condition is incompatible with either useful service or retention in the position." This is where the flexible standard of proof comes from, and it is helpful to keep it in mind.
Fourth, accommodation of the disabling medical condition in the position held must be unreasonable - or, to put it another way, the Agency must not be able to accommodate the medical condition. This is where many Federal and Postal employees get confused. The term "accommodation" has a legal, technical sense to it. To be "accommodated" means that an individual who has a medical condition will be able to continue to perform all of the essential elements of one's job, with a reasonable accommodation provided by the Agency. If the proposed accommodation is too burdensome, and therefore "unreasonable", then the Federal or Postal employee is eligible for Federal Disability Retirement benefits precisely because the Agency cannot provide for such unreasonable accommodations. By way of explanation, take the following example: A Letter Carrier has bilateral knee problems, with severe osteoarthritis and chronic pain. The essential elements of such a job would include: standing for prolonged periods of the day casing mail and carrying & lifting volumes of mail, as well as delivery of mail. Now, suppose that the U.S. Postal Service buys the Letter Carrier a $5,000.00 Segway (one of those scooter-like devices that can travel about 12 miles per hour). Would this constitute an "accommodation" under the law? Probably not - because even though the essential element of delivering the mail might be accommodated, the issue of standing for prolonged periods of time would still be a problem - as well as having to stand on the Segway. Furthermore, there would still be the question of whether spending $5,000.00 would be "reasonable". Another example: Take an IT Specialist or an Auditor for a Federal Agency, who suffers from Major Depression and anxiety. The Agency allows for the Federal worker to take Sick Leave, Annual Leave, and even LWOP in order to allow for "time off". Do these actions constitute an "accommodation" under the law? The answer is: No - because allowing for leave does not provide for the Federal employee to perform the essential elements of the job. In fact, it does the very opposite - it only serves to reinforce the obvious fact that the Federal employee is not able to perform many of the essential elements of the job, and that is why so much "time off" is needed.
And Fifth, that the Federal or Postal employee does not decline a reasonable offer of reassignment to a vacant position. The "vacant position" that is offered by an Agency must be at the same pay or grade. As a pragmatic matter, this is normally not an issue. Agencies rarely find another position which is deemed compatible with the Federal or Postal employee who already suffers from a medical condition. Often, the alike position at the same pay or grade presents the identical problems to the Federal or Postal employee, precisely because it was the medical condition which resulted in the inability to perform one or more of the essential elements to begin with.
The above constitute some of the basic elements of a Federal Disability Retirement application. While there are many other (and rather complex) issues which must be addressed in preparing, formulating and compiling a Federal Disability Retirement application under FERS or CSRS, it is always best to start with the basic elements, then construct an effective delineation of a compelling case - to be submitted to the Office of Personnel Management.

Do You Know If Your Employees Are Dissing You on Facebook?

Author:  Anne E Larson

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In Pietrylo v. Hillstone Restaurant Group d/b/a Houston's, two non-managerial employees of a New Jersey restaurant created a password-protected MySpace page to air their grievances against their employer. They invited other current and former employees to join and talk about all the "crap/drama/and gossip occurring in our workplace, without hav[ing] to worry about outside eyes prying."
The MySpace page, with its vocal and occasionally profane content, created a buzz among the restaurant staff. Eventually, a manager learned of the page when an invited employee showed him a posting. Amazed, the manager told another manager and they requested that same employee's password in order to review the content more thoroughly. After ducking the request a few times, the employee relinquished her password, ultimately opening the door for all the managers to access the page and read its content. Although the restaurant had no policy prohibiting employees from using social media to comment on its business and workplace issues, the employer fired the two employees who started the MySpace page.
The fired employees responded by filing suit, asserting their right to free speech and privacy, as well as violations of the Stored Communications Act (SCA). In July 2008, the district court granted summary judgment for the employer on the plaintiffs' free speech claim but found there were issues of fact on the privacy and SCA claims. At trial, the jury focused on whether the employer effectively coerced the one employee to disclose her password, therefore accessing the social networking site without authorization. The jury ultimately found that the employee's consent was coerced and ruled in favor of the former employees in June 2009. The United States Court of Appeals for the Third Circuit affirmed that decision in September 2009.
Social Networking and Employer Risks
The Pietrylo case highlights the risks to employers if they do business in this age of social networking without a policy that clearly informs employees what they can and cannot do, as well as the consequences for their employment. Can employees use social networking sites at work? Can they publicly blog about sensitive work rumor or criticize competitors without advance approval? Can they use social media as a platform to disparage their company or supervisor during non-working hours? Pietrylo also highlights the risks to employers if they strong-arm their employees for access to password-protected social networking sites (e.g., Facebook, MySpace and LinkedIn) to see what employees are posting about work.
What should employers do to minimize their risks regarding social media? Here are several steps every business can take to begin addressing these emerging issues:
* Determine whether your state has laws that protect an employee's off-duty conduct.
* If you are concerned about certain off-duty conduct, ascertain whether it involves union organizing and protected concerted activity.
* Craft a reasonable, balanced social media policy that protects you but does not alienate your employees.
* Disseminate and train employees on the policy.
* Make sure employees understand the consequences if they violate the policy.
* Consult regularly with your labor and employment counsel to stay abreast of this rapidly evolving area of law.

ERISA Summary Plan Description Requirements

Author: Mark Johnson, Ph.D., J.D.

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The Employee Retirement Income Security Act (ERISA), the federal law that governs private pension, group life, and health plans, requires that plan participants receive a document known as a summary plan description ("SPD"). Although the SPD must be drafted in accordance with two Department of Labor regulations, it does not have to be called "The Summary Plan Description."
What is Covered in the Summary Plan Description?
The SPD is a detailed document that informs plan participants about how the plan operates and is managed. Among other things, the SPD must clearly identify in easily understood language the following items:

• A description or summary of the benefits
• The plan name, sponsor, and administrator
• Funding mechanisms
• Participation and qualification guidelines
• Calculation methods for service and benefits
• Benefit vesting schedules
• Benefit payment procedures and timing
• Claims submission process
• Claims appeal process
• Address for service of legal process
• Circumstances that may result in ineligibility or a denial of benefits
• A statement of participants' ERISA rights and other technical notices

Questions that a participant might still have about the plan after reading the SPD can be answered by contacting the plan administrator.
When Must a Summary Plan Description be Provided?
Every plan administrator must provide a copy of the SPD to participants in the following circumstances:

• When a new plan takes effect
• When an employee becomes eligible to participate in a plan
• Upon written request of a plan participant or beneficiary

Are There Any Exceptions to the Summary Plan Description?
Employer-provided daycare and welfare plans for management and highly compensated employees are exempt from the SPD requirement. There are no exemptions from the SPD requirement for small plans covering fewer than 100 participants.
How Often Must a Summary Plan Description be Updated?
If a plan is amended or modified within a five year period, a new SPD must be distributed to participants. If there is no change, the original SPD must be distributed to plan participants every ten years.
A "summary of material modifications" may also be used to notify plan participants of a significant plan change.
What Are Common SPD Errors that Can Result in ERISA Litigation?
Administration errors or disputes that may output in ERISA litigation include but are not limited to:

• Failure to follow the procedures described in the SPD
• Conflicts between the SPD and any underlying plan document which it describes or summarizes
• Failure to clearly disclose circumstances that may result in benefits reduction, forfeitures, or exclusions
• Failure to provide plan documents in a timely manner

Overall, ERISA provides clearly proscribed procedures that must be closely followed by plan sponsors and administrators. Questions about ERISA compliance should be directed to an attorney experienced in ERISA matters.

Construction Workers And Compensation

Author: Steve Weiner

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In many process, we owe the great architecture of America's best cities to construction workers. The bridges, built in dangerous conditions that fill the gap between water and land. The major highways that connect our country. The railroads that many of us rely on for our commute each day. Unfortunately, though the output from their work may be great, the job at times can be dangerous. Building bridges are often dangerous. Similarly, construction of skyscrapers sometimes result in sever accidents and injuries to construction works.
Construction work attorneys are a line of defense for construction workers injured in on the job accidents. Construction works often lose their ability to work as a result of the accident. In these cases, they need compensation in order to survive. Furthermore, families often depend on their salaries making the importance of compensation even higher.
Construction accident victim's attorneys usually employ effective measures to win their clients cases. They also work on something known as a contingency fee basis. This means that the accident victim only owes the lawyer money if the lawyer successfully carries out the case. If the lawyer loses, you don't owe them a penny. This also allows accident victims the ability to hire successful lawyers to fight the very talented lawyers that are commonly defending the company. As mentioned, often the livelihood of the victim and his or her family can depend on the outcome of the case.
Construction workers do some of the most dangerous jobs to help make our society work. Without their hard work and expertise it is difficult to imagine the beautiful cities our country has today.

Five Reasons Why You May Need an Employment Law Solicitor

Author: Robert Berry-Smith

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If you're an employer, there are a number of scenarios where you may require an employment law solicitor. Here are five reasons why establishing contact with one could be a good idea.
1. Many companies wait until something goes wrong before reacting to it and when it comes to legal issues, that's often the case. It can lead to complications as they belatedly find out the course of action they've taken went against their legal obligations or even that action could have been taken sooner. By having a relationship with a solicitor, it means you can contact them at any time and get advice before you decide how to deal with a certain situation. They'll also help you be fully aware of any responsibilities and requirements you need to meet.
2. One of the most recent developments to have an impact on businesses is TUPE (or Transfer of Undertakings (Protection of Employment) Regulations to those not in the know). First launched in 2006, it can be a blessing and a curse in certain situations, but most companies are still left scratching their collective heads wondering whether it applies to them. An employment law specialist will be able to explain everything to you, so you don't find yourself in a tricky predicament.
3. In the lifetime of most companies, there comes a time when a restructure or reorganisation will need to take place. This may involve redundancies, either on a large or small scale, or even relocations for certain staff. In these circumstances, a fair and objective selection process must be used. Plus, did you know that if you are planning on making 20 or more redundancies within a 90 day period, then you are legally required to carry out a formal consultation process? If you require further advice or want to avoid costly and stressful employment tribunals, make sure you consult an employment law solicitor.
4. Most companies will also have some experiences of grievances and problems between employees from time to time, and even between employee and employer. With the risk of the problems escalating and even ending up in court, it's important to take quick action. A solicitor can be brought in to act as an independent mediator to let people put forward their viewpoint and speak openly and honestly without fear of any recriminations. The problems can then be dealt with and everyone can move on.
5. If your company has 50 or more employees, then you are legally required to put in place information and consultation agreements. This ensures that for all economic and employment related matters, a company must consult its employees if requested to do so by at least 10% of its workforce. A legal expert can help you make sure everything is in place and you don't get caught out by an employee who knows more than you do.

Occupational Dangers in a Convenience Store

Author: David S Caldwell

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Convenience stores are a great place to run in and grab a snack or drink when you are on the road or rushing to work. In addition to chips, candy, drinks and gum, more convenience stores offer more healthy options like fresh fruit and sandwiches. Working as an employee of a convenience store, however, can be quite dangerous.
Many hazards can present themselves while you are working that you wouldn't anticipate. These stores typically have numerous heating appliances for coffee, tea, hot dogs, soups and sandwiches. This provides ample opportunity for you to burn yourself on any of these extremely hot surfaces. Many of these appliances have exposed heating surfaces that continually heat all day long.
The potential for slip and fall injuries is also quite high in almost any type of store. Customers coming in are often in a rush and are not careful when pouring and carrying hot coffee to the register. This can be hazardous for employees who could be the victim of a spill.
Late Night Dangers
Many stores are open all day and all night. Depending on the area where the store is located, employees can be at a greater risk of attack by violent customers. If the doors remain unlocked all night, criminals can freely enter the shop and easily threaten the shop employees or inflict bodily harm.
Fortunately, employees who are injured while performing the normal duties associated with their jobs may be able to seek workers' comp benefits from their employers to help cover the costs associated with these accidents and resulting injuries.