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cthaskin

Husband hurt on job..

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Yes good afternoon,

My husband Walter drives a semi or at least he did. This past week on March the 5th he fell while getting into his truck. He thought his leg was broken. He got back in the truck contacted his work which is in another state. They did not get back to him right away. He then called me and he was in tears ( which may should like a wimpy thing to do but if you knew my husband you would know this man does NOT cry at all for any reason.) I told him to get a hold of his work and tell them he needed an ambulance to take him to the ER in San Antonio Texas. He said he cant leave the truck that he did send them a message and was waiting. This was at 11:00 am at noon still no answer. at one they got back to him and told him give us five minutes at 2pm he called me and said come get me. We live in Taylor Texas 3 hours away. I got to him as soon as I could when I got there he got the message have your wife come and get you and clean out your truck we are having someone come and pick it up. When he asked what took so long they said they went to lunch.

So they left him there from 11:00 am until I got there at 4pm with no medical help. Then they fire him because of it ? I took him to the ER is luckily it was not broken but a very bad bone bruse and the doctor said he does not see how it is not broken.

Our family is yelling lawsuit. Even though I am school for this stuff I still dont know what to do or how to handle it ?

Thank you ******

Austin Texas

[This post has been

edited to remove personal or identifying information. -Moderator]

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It would be important to know in which State the company is based. There are special rules for OTR truck drivers concerning Workers Compensation, depending upon the state of employment and the status of their employment relationship with the company.

Texas is one of the States that does not have mandatory Workers Compensation. However, since he works for a company in another State, the laws in that State would likely apply here.

As far as being terminated because of a work injury, that is most likely a violation of law, but again, it's important to know the location of the company. As soon as he notified the company that he had injured himself, it begins the claim process for Workers Compensation. The rest can be addressed once the State is known.

I am not an attorney. My comments are made based on my training and experience as well as diligent research. I am also not perfect, therefore, I will accept constructive criticism, if tendered with respect.

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I'm sorry, I should have posted this before. Instead of waiting to post additional details here, it's very important that you immediately contact a Workers Compensation Attorney in the State where the company is based.

Time is very critical.

I am not an attorney. My comments are made based on my training and experience as well as diligent research. I am also not perfect, therefore, I will accept constructive criticism, if tendered with respect.

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There's no critical deadline with regard to contacting an attorney within days/weeks. :)

I'm not clear why your husband would be calling an employer even if the employer were locally if he needed an ambulance. You dial "911" for that, I'm afraid, regardless of the reason for the injury. It isn't the employer's obligation to get him to medical assistance (or even call for it) under the scenario you're describing.

I"m not sure what you mean by "cant [sic] leave the truck" (and by that I presume you mean he owns the actual truck). Unless he was out in the middle of nowhere, I would hope he could get someone to help him lock up whatever door.

The scenario you're describing doesn't make a ton of sense to me.

It isn't clear whether your husband is an actual employee or whether he's an independent contractor (or perhaps mischaracterized as such by employer vs. client).

"Then they fire him because of it ? "

A rhetorical question like this isn't very productive.

"Our family is yelling lawsuit."

I'm sorry, lawsuit for ... what? There's no lawsuit here as such (and it's not as though you're talking about faulty machinery cutting off his leg). Even if the injury were serious and he couldn't work again and this company is his actual employer, it's a matter the state workers' comp system being used.

"Even though I am school for this stuff I still dont know what to do or how to handle it ?"

This seems more like a statement, but if your husband is their employee and the company won't pay for the medical assistance costs and time off work, then he files a workers' compensation claim with the state.

http://www.tdi.texas.gov/wc/index.html

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By the way, as to the overarching issue that you didn't really ask a question about, again, we haven't established that he's an employee. The employer can also make up any story it likes about firing him, or arguing that he violated X-Y-Z protocol. He's of course free to (and should) if he's an employee file and fight for unemployment benefits.

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FALLEN SAID: There's no critical deadline with regard to contacting an attorney within days/weeks. :)

Actually, there could be. Workers Compensation laws vary by State, and reporting / claim requirements are regulated by those laws. Some States require that a claim be filed within 7 days of the accident / injury. Most States have a time-sensitive period as to when a First Report of Injury must be filed with the State Board of Workers Compensation (or the State equivalent). That must be filed by the injured worker to preserve his/her rights, if the employer or its insurance carrier fails to file the FROI.

Of course, since we don't know in what State the employer is located, we can't say for certain what those time limits are. The employer, according to the OP is not in Texas, so their WC laws wouldn't apply here. Also, Texas law doesn't require WC coverage. It's the only State where WC is an option and not a legal requirement. Still, this wouldn't be covered by Texas WC law when the employer is in another State.

I have extensive experience in WC claims, and given that, I see a problem already, since the employer terminated the driver pretty much immediately after the injury. This is a clear sign that the employer will be controverting the claim and be posturing for an uphill battle for the injured worker.

As soon as there is resistance in the filing of a WC claim, it is imperative that legal counsel get involved quickly in order to preserve the injured worker's rights under whatever State law applies here.

It has now been 12 days since the injury. I wouldn't be waiting much longer.

I am not an attorney. My comments are made based on my training and experience as well as diligent research. I am also not perfect, therefore, I will accept constructive criticism, if tendered with respect.

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Something I wanted to add here.

There is case law in many States, where an OTR truck driver is considered an employee, even though they may be an independent contractor, either driving a company vehicle, or as an owner/operator. The courts have determined that, among other things, if the company dictates the driver's schedule, that driver is not free to set his own schedule and is considered "managed" by the company as an employee.

I can't say this is the case here, but it's something that a WC attorney in the company's State would be able to determine (or argue, if necessary).

I do agree that needs to be established to be sure a WC claim could be filed.

I am not an attorney. My comments are made based on my training and experience as well as diligent research. I am also not perfect, therefore, I will accept constructive criticism, if tendered with respect.

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RetCopPrigl said...

There is case law in many States, where an OTR truck driver is

considered an employee, even though they may be an independent

contractor, either driving a company vehicle, or as an owner/operator.

The courts have determined that, among other things, if the company

dictates the driver's schedule, that driver is not free to set his own

schedule and is considered "managed" by the company as an employee.

By way of clarification, it is important to determine whether the individual is an employee or not, because workman's comp generally only covers injuries to employees on the job. What the case law generally holds is that the label the parties have put on the arrangement is not controlling for this determination. Thus, even if the company and the truck driver have some agreement calling it an independent contractor relationship, that may not dictate the result under either tax or workman's comp laws. The cases generally say that the determination of whether one is an employee is determined by the degree of control the company has over the work that the hired person does. There is no bright line rule here; the courts look at a variety of factors and determine in each case based on its facts and circumstances whether the individual is an employee or independent contractor. The factors used will vary a bit depending on the purpose for the determination (taxes, workman's comp, unemployment benefits, etc) and which jurisdiction (federal or the law of a particular state). The IRS has a decent discussion of the factors used in federal tax law in IRS Publication 15-A. While the factors for your state's workman's comp may be a bit different, the publication will at least provide you an introduction to the topic and you'll be able to see the kinds of factors that the courts look at.

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Thanks for elaborating on that issue, Tax_Counselor - I was trying to be a bit less verbose than I normally am.

This was one of the reasons I suggested the OP consult with a WC attorney in the Co's home State ASAP. The clock ticks differently with each State's WC laws, and establishing employment status is critical in the beginning, as that will likely be a reason for a claim of controversion by the Employer or the Insurance Carrier.

I am not an attorney. My comments are made based on my training and experience as well as diligent research. I am also not perfect, therefore, I will accept constructive criticism, if tendered with respect.

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