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The Bellagio blackjack dealer whose face was slashed just before Christmas this past year filed a lawsuit this week against her employer and her jailed attacker, according to theLas Vegas RJ today (2/26/13). The newspaper stated that the legal complaint against the Bellagio by the injured employee alleges that employer Bellagio failed to ensure the safety of its employees and failed to give her timely aid after her face was gashed with a razor blade by an attacker. The article wasn't clear about the relationship between the attacker and the black jack dealer, but earlier reports referenced a domestic dispute that also involved the death of a child.
Attorney Harold Gewerter represents the injured employee in the lawsuit. I haven't seen a copy of the Complaint he filed to intiate the lawsuit. I am interested to see how he intends to avoid a likely motion by the Bellagio to dismiss the lawsuit based on an "exclusive remedy" defense. That defense provides that if an employer purchases workers' compensation insurance, an employee who is injured in the course and scope of employment cannot sue the employer, even if the injury resulted from an unsafe work condition. The employee's "exclusive remedy" are the benefits described in Nevada's workers' compensation law if the employee has a possible work comp claim.
If the facially disfigured Bellagio blackjack dealer survives an "exclusive remedy" defense argument, it may be because the attack cannot be said to arise out of the course of the blackjack dealer's employment. Instead, the attack may have been related to a personal dispute between the attacker and the blackjack dealter that had nothing to do with the blackjack dealer's job. If so, then the blackjack dealer would not have a compensable workers' compensation claim that would give her immediate medical and compensation benefits. She would then have to hope that her civil lawsuit can prove liability by the Bellagio under tort law.
--Written by Virginia Hunt, Hunt Law Office
Click here for a short video on how workers' compensation laws developed in the U.S. Remember that each state has its own laws, and that the idea is to compensation all injured workers to some extent. In order to require that employers purchase workers' compensation insurance policies, the cost has to be affordable for employers. That means that injured workers are not compensated 100% for lost wages. Injured workers do not receive the same type of settlements that people may recover when they sue someone at fault for their injury who is not a co-worker or an employer.
--Written by Virginia Hunt, Hunt Law Office
According to the U.S. Bureau of Labor Statistics, in 2010, about a fifth of all workplace fatalities in Nevada were caused by a worker falling. Almost every serious fall injury I've handled in the Nevada work comp arena in the past fifteen years was caused either by the employer's obvious failure to follow safe work practices, or the employee's own unsafe actions.
Contrary to what most non-attorneys think, whose fault caused the injured worker to fall isn't supposed to determine whether a workers' compensation claim is accepted or denied. However, a recent 2011 unpublished decision from the Nevada Supreme Court has me worried that the current justices want to allow employers and insurers to use fault by the injured worker to deny claims. I hope that I'm wrong, and that the Nevada Supreme Court's Order of Reversal and Remand in Fitzgerald's Casino/Hotel v. Mogg, No. 55818 (11/18/11) isn't a major attitude shift against injured workers.
Under Nevada work comp law, injured workers are entitled to medical care, benefits payable at two-thirds of their wages when off work, an award for most permanent injuries, retraining if necessary, and lifetime reopening rights for serious injuries. Nevada law states in NRS 616C.150(1) that a claim is compensable if the employee's accident and resulting injuries arise out of and in the course and scope of the employment.
It has always been a key component to Nevada's workers compensation system that in exchange for purchasing workers' comp insurance, an employer cannot be sued for work-related injuries to employees, even if the employer's negligence causes the injury. The trade-off for the employee not being able to sue the employer is the employee's entitlement to benefits, even if the employee causes his own accident. The underlying premise behind these trade-offs is that the statutory benefits for injured workers will be borne by industrial insurance purchased by employers, the cost of which will ultimately be spread to consumers and society. This is called the exclusive remedy doctrine, and is codified at NRS 616A.020.
Nevada law states that because workers cannot sue their employers who comply with the law by purchasing workers' comp insurance, the employer cannot assert common law defenses to a a claim. In other words, the employer cannot defeat an employee's worker's comp claim by arguing that the employee was contributory negligent in causing his own accident and injuries. Two notable exceptions are laws that exclude self-inflicted injuries, and injuries caused by the employee's intoxication. Otherwise, an employee's own fault in causing his accident is not supposed to be a valid reason to deny his claim.
The justices discussion in the Fitzgerald v. Mogg case however, comes dangerously close to introducing the idea that an employee's simple failure to follow an unwritten rule at work can be used to deny his claim. Mogg was employed as a security officer who monitored the surveillance cameras in the casino's eye in the sky. When he went to put his feet up on a desk while working, his chair fell over and he was injured. An appeals officer ruled that the injury was compensablle, but the Nevada Supreme Court reversed and remanded the case back to the appeals officer for further findings.
The court referenced a case they had recently decided involving a casino employee's fall on back stairs to an employee break room. In Rio All Suite Hotel v. Phillips, 126 Nev. Adv. Op. 34 (2010), a poker dealer twisted her ankle for some unknown reason while descending stairs to the employee break room. The Court applied an increased risk test to this unexplained fall to determine whether the injury "arose out of " employment. The Court noted that the dealer was required to use these stairs more frequently than the general public, and that they were the only stairs to the employee break room. The dealer's risk of injury was therefore greater than the general public risk of injury on these particular stairs, so the claim was considered in the course and scope of employment.
In Mogg's case, the appeals officer neglected to make findings that Mogg was at increased risk of falling at work from a chair that wasn't defective. If Mogg wasn't put at increased risk (due to long hours of watching security cameras), then his claim would not be considered work-related.
The court also wanted the appeals officer to make findings whether Mogg's injury came within the the personal comfort doctrine. That legal theory says that an injury is work-related if it happens when an employee is injured while engaging in reasonable personal comfort activities, such as going to the restroom. Mogg's employer didn't have a written policy against employees charged with viewing security monitors all day from putting their feet on desks, but the employer got statements from other employees that the employer had an implied prohibition against putting feet on desks. The employer argued that putting feet on a desk while working was unreasonable, and took the activity outside the course and scope of employment. The court didn't decide that question, and wanted the appeals officer to first clarify whether the employer had an implied prohibition about putting feet on a desks. If so, Mogg wouldn't get any medical care or benefits because his conduct was outside the personal comfort doctrine and therefore not within the course and scope of employment.
Fortunately, the court's order is not an official published decision. The order cannot be cited as precedent by appeals officers or district court judges as an interpretation of Nevada law. However, it does tell us how the justices are thinking about injured workers in Nevada. The court's discussion has me worried that the court is dangerously close to judicially legislating that employers can deny claims if they can show that an employee was doing something that the employer impliedly prohibited.
Almost all large employers have written and implied safety rules. If employers can show that an employee is doing his job in such a way as to violate a written or an implied safety rule, almost every claim can be denied as being outside the course and scope of employment Employers can easily get written statements from supervisors stating that there are implied rules against doing anything unsafe. What employer won't come up with an implied prohibition against whatever conduct causes their employees to get injured? I'm not sure the court completely considered the effect of allowing employers to argue that there are unwritten, implied rules against innocuous, but slightly unsafe conduct by employees that might cause an accident.
Remember that the flip side of the exclusive remedy rule is that employers cannot be sued for work-related injuries, even if the accident is caused by the employer's violation of safety rules. Employees who are seriously injured by their employers' fault are only entitled to the specific benefits available to all injured workers under the Nevada Industrial Insurance Act (NRS 616). The employee cannot sue his employer for any additional money by showing that the employer was at fault, or that the employer violated safety regulations.
If the court were to officially adopt the analysis it uses in the recent Order in the Fitzgerald v. Mogg case, then employers will be able to circumvent the exclusive remedy rule by showing that the employee was at fault for the accident and that the claim should be denied. The court doesn't come right out and use the word "fault", but that is what the court is really talking about when it refers to unreasonable conduct that is outside the course and scope of employment. It isn't fair if the court is not likely to employ the same legal analysis when an employee is injured by the fault of an employer who insists that the employee work under unsafe conditions. Will the court find that unsafe employer-required activity that causes an accident is outside the course and scope of an injured worker's employment so as to allow the employee to sue the employer? I doubt it. The court is more likely to tell an injured employees that they are limited to workers' comp benefits even if the employer insisted they do some unreasonable and unsafe activity at work that caused the accident.
The court's decision last year in Rio v. Phillips is more helpful to employees who have injures from unexplained falls than two older cases often relied on by insurers to deny slip and fall claims. See Mitchell v. Clark County, 121 Nev. Adv. 21 (2003), and Rio Suite Hotel v. Gorsky, 113 Nev. 600, 939 P.2d 1043 (1997). Those two older cases were not overruled in the recent Phillips case, however, and injured workers must still prove more than that their injury happened at work. Insurers frequently deny cases involving unexplained falls at work, or falls where the employee cannot remember exactly what happened before he or she fell. Many of those cases are actually winnable cases when appealed correctly. An injured worker shouldn't give up on a denied claim caused by a fall at work without an experienced legal opinion.
As I first mentioned, most serious fall injuries can be easily related to either the fault of the employer or fault of the employee. There really aren't that many unexplained fall, so I think the court's discussion in the unpublished Fitzgerald v. Mogg case is more significant than the published decision in the Rio v. Phillips case. The Fitzgerald v. Mogg analysis is unfair to injured workers because it will allow employers to use the employee's own fault (unreasonable conduct) as a defense to a claim. This is a fundamental change to Nevada workers' compensation law, and should instead come the Nevada legislature, if at all.
People who contact me after getting hurt as a result of an unsafe work condition ask about suing their employer. In this lousy economy many employers are trying to save a buck by not following safety procedures to protect employees from foreseeable accidents.
The worker who ends up hurt due to an obvious unsafe work condition or practice feels angry toward his employer. However, the law is the same whether someone is angry or not. It's a shock for the injured worker to learn that his employer cannot be sued for the harm caused by the employer's failure to correct an unsafe work condition, even if the employer has been asked to correct it and knows that an accident is likely to happen. The reason for that has to do with the underlying concept behind workers' compensation laws.
If an injury arises out of and in the course and scope of employment, the injured worker has the right to file a workers' compensation claim and the right to obtain the benefits described in the Nevada Industrial Insurance Act (NRS Chapters 616A-D). As the injured worker discovers, those benefits only partially compensate him for his lost wages and loss of earning potential. No matter how negligent, uncaring, or stupid an employer is about work place safety, if the employer has purchased workers' comp insurance, the employer is legally protected from a direct lawsuit by the injured employee. This is called exclusive remedy.
What an injured employee should do is maximize his workers' comp benefits by educating himself about all benefits that are available. The employee may also take action before or after he is injured by filing an anonymous complaint with Nevada OSHA to report unsafe work conditions. An OSHA inspector may inspect a workplace, fine the employer, and order corrective action. However, no additional benefits or compensation will be paid to the injured worker if a violation is found.
Why has the Nevada legislature made it impossible for injured workers to sue negligent employers who cause work injuries with their unsafe work conditions? The reason is mostly historical. When workers compensation laws were adopted by the various states at the turn of the century, they were a great improvement for most workers over trying to sue their employer under the common law. The new laws provided immediate medical care and wage loss replacement for all workers regardless of who was at fault for the accident. The idea was that society would protect all injured workers to some extent and spread the cost of industrial insurance on to all consumers through the employers.
This month is the 100th anniversary of the Triangle Shirtwaist Fire that killed 146 people in a factory that had had several fires. This tragic fire in a Manhattan sweat shop prompted many of the early reforms to protect workers from unsafe work conditions.The reforms lead to much better working conditions, but one hundred years later, employers still don't always do the safe and right thing to protect their employees from harm.
Are the reasons for not being able to sue the employer still valid in today's world? Or, is it time to make an inroad into the exclusive remedy protection afforded to employers?
Q: If I file a workers' compensation claim, does that mean that I am suing my employer?
A: No. When you go to a doctor for your work injury, the doctor should give you a C-4 (Claim for Compensation form) when you tell the doctor that you were hurt at work. Your completion of the upper part of the form, and the doctor's completion of the lower part of that form is absolutely necessary to start the claims process. The doctor's office is responsible for sending the C-4 form to the third party administrator for your employer's industrial insurer. Your employer expects you to follow your employer's rules for reporting injuries, and your employer is required by law to tell you where you should go for medical care where you file the C-4 claim. Filing a claim is not suing your employer. In fact, you cannot legally sue your employer for injuries that arise out of the course and scope of your employment. You are limited to the benefits the Nevada legislature makes available to injured workers under the Nevada Industrial Insurance Act. Your exclusive remedy for obtaining compensation for your injury from your employer is strictly through Nevada workers' compensation laws. That is true even if you can show that your injury was caused by your employer's negligence or your employer's failure to follow safety regulations.
Q: Am I suing my employer if I hire an attorney to represent me?
A: No, an experienced workers compensation attorney will instead obtain all available benefits for you under the Nevada Industrial Insurance Act, or the Nevada Occupational Disease Act. Most decisions regarding medical treatment and compensation on your claim are made by the adjuster assigned to your claim. If your attorney disagrees with something the adjuster does or does not do, your attorney will file an appeal with the hearings division of the Department of Administration. Most disputes that involve appeals on workers compensation claims are between the injured worker and the third party administrator for your employer's insurer. Sometimes the employer takes a position on a particular issue and is involved in a hearing, but you are still not suing your employer by filing appeals. Most injured workers like their employers and hope to return to the same job after they recover from their injuries. An experienced workers' comp lawyer will not want to do anything that disrupts your good relationship with your employer.
I am asked so many questions about whether an injured worker can sue his employer that I have written an explanatory article entitled, "Can I Sue My Employer". That article is in the Information Center at www.huntlawoffice.com. I have included the citations to the Nevada Supreme Court decisions that discuss the exceptions to the exclusive remedy rule. The exclusive remedy rule is used by employers to defeat lawsuits attempted by injured workers who try to sue employers for their work injuries.
NRS 616A.010 and616A.020 are the actual laws that contain the language relied on by employers using the exclusive remedy defence. Those laws say that injured workers cannot sue their employers for a work-related injury or occupational illness, and that injured workers must instead be compensated with the benefits provided by the laws that make up our workers' compensation system in Nevada. However, if the injury is caused by someone other than the employer or a co-employee, the injured worker may also pursue a personal injury action against the person or entity responsible for causing the injury. The law then becomes very complex in determining who or what is a "co-employee", or an "employer" for purposes of determining whether a personal injury lawsuit can be brought. In Richards v. Republic Silver State Disposal, 148 P.3d 684 (2006), the Nevada Supreme Court reviews the body of case law on this topic.
I am surprised that no one is discussing making changes to Nevada's exclusive remedy law as one of many proposed solutions to the workplace safety problem. The recent U.S. House and Senate Committee hearings on Capitol Hill concerning OSHA's role in investigating workers' fatalities prompted a suggestion from Representative Dina Titus this week that criminal penalties be imposed against offending employers. Certainly that is one way to further deter repeated safety violations. A criminal penalty will give a wake up call to those employers who are more concerned with profit than the wellbeing of their employees. But lost amid this discussion of deterrence is how to better address the needs of the families of those who are seriously injured or killed through an employer's flagrant disregard of safety precautions.
Currently, for fatalities after July 1, 2008, the maximum death benefit available under Nevada workers' compensation law to the surviving spouse and dependent children of a Nevada worker is $3,410.82 a month. Compensation benefits for on-the-job injuries and deaths in Nevada are determined by the Nevada legislature. It is too late for Nevada's legislative session, due to end on June 1 in Carson City, for state legislators to consider changes to the exclusive remedy defense available to employers. The exclusive remedy defense shields employers who comply with the law and purchase workers' compensation insurance from any liability for the workplace accidents of their employees. Injured employees or family members of deceased workers are limited to the benefits provided under workers' compensation law, even if it can be shown that the accident was preventable and due to the gross negligence of the employer.
Why not increase the benefits if an injured worker or the family can show that the injury or death was caused by the employer's repeated violation of safety rules? Families may welcome being able to participate in the penalty assessment process under the proposed federal Protecting America's Workers Act, but I think Nevada families would be most appreciative of additional financial aid to replace the lost income of the loved one. We have two years before the next legislative session in Nevada. Let's start working on some overdue changes to the law that would act as a both a deterrent to extremely sloppy safety practices and as additional financial relief to the victims of those unsafe practices.