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InstagramKrysten LeFavour:
I think a lot of times the pitfalls become when the personal injury lawyer is going straight ahead on their case, and they’re not paying attention to what’s going on in the worker’s compensation side of it, whether or not the employee is not getting great care, or they’re still under treatment and they try to settle the case or just all of those things. When you have both cases, which you often do, you have to coordinate and communicate with that worker’s compensation lawyer. When you’re dealing with the worker’s compensation laws, sometimes it’s hard to navigate and know all of these rules and what is the best thing for your client or what’s the best thing for you once you’ve been injured.
David Craig – Host:
Today, I’m excited to have Krysten LeFavour as our guest. Krysten is an attorney who handles all types of things, but one of the areas that she does a lot of work in and is extraordinarily knowledgeable in is worker’s compensation. I’m really excited to have her here to talk about worker’s compensation and the effect worker’s compensation has on large cases. This is After the Crash.
David Craig – Host:
I’m Attorney David Craig, managing partner and one of the founders of the law firm Craig, Kelley & Faultless. I’ve represented people who’ve been seriously injured or who have had a family member killed in a semi or other big truck wreck for over 30 years. Following the wreck, their lives are chaos. Often, they don’t even know enough about the process to ask the right questions. It is my goal to empower you by providing you with the information you need to protect yourself and your family. In each and every episode, I will interview top experts and professionals that are involved in truck wreck cases. This is After the Crash.
David Craig – Host:
Krysten had her undergraduate degree in social work. She graduated with honors. She then went on to law school and in law school she graduated summa cum laude, the highest honors you can graduate with. She also did law review, and she did moot court. She did a little bit of everything while she still raised a family and worked. So, she is truly an amazing person, and I really look up to Krysten. She is licensed in Indiana and in the state of Kentucky. She is a frequent speaker on the topic of worker’s compensation. She was rated as a Super Lawyer Rising Star for several years, and I’m really excited to have her here today to talk about worker’s compensation and the effects worker’s compensation has on large cases. I’m involved in huge cases that involve semi-truck drivers that are negligent, that injure people, as well as other large cases, and I think that a lot of people don’t understand the interrelationship of worker’s compensation law and personal injury law, and that is why I invited Krysten to be a guest. Welcome Krysten.
Krysten LeFavour:
Thank you. Thank you for having me.
David Craig – Host:
So, let’s start off I guess, tell us a little bit about your background. I know you were actually a judge in Indiana in the worker’s comp area and you did that for several years, for like 12 years. So, tell us a little bit about your experience as a judge. How has that helped you and helped make you a better lawyer in this area of expertise?
Krysten LeFavour:
Yeah, so I actually worked at the Indiana Worker’s Compensation Board starting my first year of law school. I was what would be looked at as a law clerk there. I was a policy analyst, and I handled everything from helping the judges to looking at law and always made sure that I wanted to learn everything that I could. I probably read every worker’s compensation case back to 1920 and when there was a political change in about 2006, I was appointed as the executive administrator which is the head of the administrative board of the agency. Then, when I graduated from law school, I was appointed as one of the youngest judges ever in the State of Indiana in worker’s compensation.
Krysten LeFavour:
My area was southeast Indiana. I covered all cases, all disputed cases in Southeast Indiana and I would hear those cases between an employee and an employer if they had a dispute over worker’s compensation. So, I really feel like that prepared me to represent injured workers because I saw a lot of the pitfalls of them navigating this system where they didn’t know the rules, and the rules are pretty particular here in Indiana about worker’s compensation. So, I retired in 2018 to represent solely injured workers before the Indiana Worker’s Compensation Board.
David Craig – Host:
And Krysten, as a judge, I mean it has to be kind of heartbreaking sometimes. I mean you’re actually listening to these people, making determinations, and I know there’s an appellate process, and then, I know periodically you have to meet with the full board. I would think that would definitely enlighten you, because that’s experiences that I’ve never had. I would have no idea what that’s like to sit there and make the decisions and have to base your decisions on the law and then have to make decisions that you’re comfortable with that when you go in front of the full board or when it goes up to a Court of Appeals, that you’ve made a solid decision.
Krysten LeFavour:
Yeah, I used to say that you always know that you made a good decision if both people are unhappy. It’s difficult, you have to look at the law, but you also are concerned about the way that the law is being applied. There were definitely times I was very frustrated when employers were not taking care of employees because they’re injured, they’re hurt, they’re going through a difficult time, and they really don’t need that extra added concern of dealing with the law and dealing with their employer and things not getting taken care of correctly and the system isn’t necessarily set up to quickly address those issues. I know that as judges there were seven of us in the entire state of Indiana, so we held hearings in different counties but only once or twice a year. So that means for injured workers, they can really have difficulty navigating that system.
Krysten LeFavour:
Then, you also want to be fair to the law and making sure that it’s applied correctly and working with the state as well with the government and making sure that you’re a good public servant to the state of Indiana. It was definitely an experience on how the worker’s compensation system works and knowing the ins and outs of that on top of just knowing the law.
David Craig – Host:
I know when I first met you while you were still a judge in the worker’s compensation world, and we were very fortunate. We didn’t do worker’s compensation at our firm at that time, and so you were able to come work with us almost like an internship, kind of like learning personal law on top of what you were already doing and serving as a judge. You joined us of counsel when you retired from the Board, and you now handle other types of cases with us as well as worker’s comp which I think kind of helps round out everything. It kind of helps round out your experience so it’s not just worker’s compensation, and you have that extra expertise that most lawyers don’t have. Then, you also get to see it from a personal injury, and what we call third party cases sometimes.
Krysten LeFavour:
Yes, absolutely. I handle cases here with Craig, Kelley & Faultless, personal injury cases that are in what we call pre-suit or pre-litigation as well as worker’s compensation cases. I handle all of the worker’s compensation cases from pre-litigation, what we would call suit into the litigation process, and then of course, there are cases that are both where there is a personal injury aspect as well as a worker’s compensation aspect. Because you don’t have to have either/or. Employees, as injured people, may have both claims depending on how or when they were injured.
David Craig – Host:
I think it’s helpful to the listeners, I mean the audience here. This podcast is designed for the average everyday person. Not the lawyers, not the judges. It’s designed for everyday people, because I believe that giving people information is power, and the more information we can provide to people, the more power they have. So, there’s a lot of these people that are listening to this that have no idea what worker’s compensation is, and they have no idea what we’re talking about so far. So, why don’t you tell us briefly what is worker’s compensation law. What is that? What is worker’s compensation and what are the benefits? How does it work?
What Is Workers’ Compensation Law?
Krysten LeFavour:
So, worker’s compensation is a system wherein if you’re injured at work or in the course of your employment, which is a big legal word but it essentially usually means at work or while you’re doing work duties, like if you’re a traveling employee, a delivery driver, it’s when you’re on the road, but it’s a system, a statutory system, that was created to provide people who are injured at work with benefits and compensation for their injury. So, they’re entitled to medical benefits. They’re entitled to mileage on the way to their medical appointment if it’s outside of the county, they’re entitled to disability benefits, temporary total disability, and then at the end of their claim once they get to a point of permanence, then they may be entitled to permanent partial impairment. So, that’s a percentage amount that then corresponds to a monetary amount to compensate you for functional loss.
Krysten LeFavour:
Finally, you may be completely disabled or permanently and totally disabled, and then there is up to 500 weeks of your disability benefits that would be owed. So, it’s a statutory system and the benefit of it is, number one, the employee does not have to show negligence. So, in a personal injury case, we have to show that someone was negligent or did something wrong. Whereas in worker’s compensation, you don’t have to show that the employer did anything wrong and even if the employee may have had some fault, it doesn’t make a difference. Those words don’t come into the worker’s compensation system except in a couple of small caveats such as if an employee was intoxicated. Other than that, fault does not come into play in Indiana worker’s compensation, which is the compromise. So, the benefits in my opinion are pretty low, and we’re working with the Indiana State Legislature to try and get benefits increased this year, but they’re still low. On the other hand, the employee does not have to show negligence.
Krysten LeFavour:
So, it’s a compromise that the Legislature made to hopefully get more people benefits but then also lower benefits. The things that you’re not entitled to under worker’s compensation are things like pain and suffering which is the biggest one that oftentimes people are frustrated and concerned about, understandably so. That’s the compromise that was made, and every state in the United States has a worker’s compensation system. Texas actually made it recently an opt-out but other than that, every state has worker’s compensation available for injured workers.
David Craig – Host:
I would imagine that the benefits and the flexibility vary from state to state.
Do Workers’ Compensation Benefits Vary from State to State?
Krysten LeFavour:
Absolutely. I mean one of the biggest things here in Indiana which is I think frustrating is that the employer gets to pick the physician. So, there are other states where the employee still gets to pick their doctor and the employer has to pay for it. There are also some states where the employer can put out a panel. So, three different doctors and then the injured person gets to pick from those three doctors, but here in Indiana, the employer or their insurance company gets to direct you to the physician that they choose.
Krysten LeFavour:
Now one of the things that’s really important is that even though they get to choose the doctor, they don’t get to choose the care. Once they choose a doctor, then that doctor and what they say the employee, or the injured person needs is what they need to provide. So, if the doctor says they need an MRI, then the employer needs to send them for an MRI. They can’t question that although they try quite frequently. There is a pretty big case here in Indiana that makes it really clear, it’s called Young v. Marling that they are not allowed to then question the treating physician’s recommendations.
David Craig – Host:
So, kind of to summarize, so in my world, where I’m suing people who are negligent, and negligence kind of is a legal word, but we all have a duty of reasonable care. When somebody violates that duty of reasonable care and they’re careless, then if they hurt somebody, then that person, the person who does the damage, is responsible for paying for the harm caused to the victim. So, a semi tractor-trailer runs a red light and that’s negligent, that’s not reasonable. A reasonable person stops at a red light, but a semi tractor-trailer driver runs a red light and hits a car, then that driver of that semi and the trucking company if that semi driver is within the scope of his employment is responsible to the victim in the car for all the damage and harm that is caused by that wreck.
David Craig – Host:
What you’re telling us, the worker’s compensation world is, even if I’m negligent, but I’m an employee, and so if the employee goes to work and slips, sees a puddle of water on the floor and it has a wet floor sign right there by that puddle of water, but that employee is doing their job and carrying something and maybe a reasonable person would have seen the puddle, but this employee doesn’t and slips and falls, so they’re not acting reasonably, they still recover in the worker’s compensation world, correct?
Krysten LeFavour:
Correct. It’s actually even more common is a one car motor vehicle accident. So, you’re working for your employer, maybe even as a police officer or you’re working for your employer as a delivery truck driver, and you are looking at your phone and not paying attention, and you run off the road. The employer, even though it’s technically your fault that the accident happened, you’re still entitled to worker’s compensation because you were injured in the course of your employment or while working.
David Craig – Host:
Okay, and although the benefits are smaller, the nice thing about it is that they get compensated, no matter what, typically.
Krysten LeFavour:
Way too small in my opinion, but yes. I mean you get limited benefits, and it should also be easier. One of the things I say all the time is that injured workers actually shouldn’t have to call an attorney. It should be automatic. They should be getting their benefits right off the bat, nobody should be harassing them about getting their medical, they shouldn’t have to ask for their temporary total disability, they should be getting their mileage, and in a perfect world that would all happen automatically. Quite frequently, unfortunately, it isn’t, and you have to call the insurance companies multiple times to get your benefits, but yes, that’s the pro of worker’s compensation is that you don’t have to prove negligence and it should be easier. Whereas with a negligence claim or a personal injury claim, you have to prove negligence, and sometimes it can be a process going through litigation or even pre-suit to prove your damages.
David Craig – Host:
Now, even though I don’t represent injured workers, I mean I only represent folks in normal negligence cases when someone else is careless and hurts them, worker’s compensation is often involved, even in my world. I’ve been practicing for over 35 years, and I’ve had a lot of cases that involve a person that was working, but they were injured by someone else that was negligent and that was not his or her employer. I want to talk about one of the trickiest things upfront, for young lawyers or lawyers who don’t normally do this area, which is that there is this rule that if you settle a case, first of all, you have to pay back the worker’s compensation, what worker’s compensation has paid. So, worker’s compensation pays your medical bills, and they pick your doctors like you talked about. They pay the medical bills, they pay maybe some disability or some of these other things you’ve talked about, but they’re entitled to be paid back because it’s not the employer’s fault, it’s this third party, this other entity’s, this other person’s fault.
David Craig – Host:
So, they’re entitled to be paid back. That’s called subrogation. I know clients are always shocked when they have to either pay back their health insurance or they have to pay back the worker’s compensation carrier from this settlement that they get. So, talk a little bit about subrogation in the worker’s compensation world.
What Is Subrogation in Workers’ Compensation?
Krysten LeFavour:
Yes, and that is really important that you have an attorney that’s knowledgeable in both worker’s compensation and personal injury because this is one of the biggest pitfalls. With subrogation, if the employer pays, they are paying for a subset of your total damages. We claim the total damages in a personal injury claim. So, that means that subset gets to be paid back to the employer, although it doesn’t mean that they get 100%, and that’s part of it is that we can negotiate with them to pay back a reduced amount. Let’s say there was a comparative fault issue, the question is to who was 100% at fault, we may argue that the employer should get back less of their money so that our clients are entitled to more out of the total amount from the negligent party.
Krysten LeFavour:
It’s really important because your right to negotiate those is cut off if you don’t get permission from the worker’s compensation carrier before you settle your case on the personal injury. So, you may be losing a lot of negotiation leverage as well as money for your client if you don’t go through the steps that are required. So, the statute says that unless you’re willing to pay 100% of your money you got on the third party over to the employer, and make them whole, then you have to get permission in writing prior to settling your third-party case, and that, a lot of times, we negotiate with the personal injury insurance carrier or the negligent party, and we get a settlement that’s contingent. Then, we work with worker’s compensation, so it’s a process sometimes, but it’s certainly something that your attorney should be aware of so that they don’t get into that pitfall and potentially lose some of the settlement funds that you’re entitled to for your damages and the things that you went through.
David Craig – Host:
I remember when I was a brand new young lawyer, I didn’t have anybody really to teach me personal injury law. So, I was kind of learning it on my own, and I probably shouldn’t admit this, but I settled a case that had worker’s compensation benefits, and I didn’t know what you’re talking about. So, I remember then, after I settled the case, then I looked up and I’m like, “Uh-oh. Boy, did I mess up,” because I didn’t get permission in writing from the worker’s compensation carrier. So, now I’m going to owe them more money because I’m not going to be able to negotiate with them and get a reduction.
David Craig – Host:
That’s a lesson. I mean this was when I very first started practicing. It’s a lesson that I never forgot and that I’ve taught all my young attorneys that work for me, but it’s a horrible feeling and sinking feeling in your gut because I would have made a hole for my client. My client wouldn’t have lost anything, but it would have come out of my pocket. Luckily, when I called the worker’s compensation carrier, they laughed, and they negotiated with me anyway. So, there was no harm done, but it is a huge problem if you’re a lawyer out there who does general practice in a smaller community, and you have no idea, and they could come back to haunt and hurt your client or the attorney.
Krysten LeFavour:
I think the other thing to think about is that not only is there a subrogation issue but once you settle that third party case, it terminates your right to any future worker’s compensation. So, one of the things we often think about is that the personal injury claim or the negligence claim is worth more than the worker’s compensation claim. However, in the State of Indiana, we have minimum limits on auto insurance. So, let’s say it’s a motor vehicle accident, and I had a client who was horribly injured when he was mowing grass on the side of the street for his employer. There was only $25,000.00 in insurance from the vehicle that hit him. So, in that circumstance, there’s no point in taking the $25,000.00 in insurance without going to the worker’s compensation carrier first because if you did, then it terminates their right to medical benefits which could be into the millions based on how catastrophic these losses can be.
Krysten LeFavour:
So, in that case, oftentimes we can go to the employer or their insurance carrier and say, “Hey, let’s waive this part of the law that says that you can terminate the benefits under worker’s compensation so that we can accept any kind of third-party funds and then work out a deal as to who gets what portion of that.” But again, that’s a really important thing because you could hurt your client quite a bit by terminating worker’s compensation benefits in the middle of their treatment.
David Craig – Host:
I mean that’s critically important for the person out there who is listening because if you happen to get hurt and you’re on the job, you’re within the scope of your employment, and you get hurt and you have catastrophic injuries, and let’s say a box truck, a gravel truck, a dump truck, a semi, or an 18-wheeler or whatever, or any other way injures you, then the reality is you need a lawyer that handles personal injury who is knowledgeable on how to get you the best recovery that you can get, but you also need somebody that knows the worker’s compensation side because that can be just as important to your future as having the right personal injury lawyer. So, you need that combination. You need somebody that has the knowledge of both areas or that you need two lawyers working together and it’s critical that they work together and not independently and that they communicate, they talk, and they work together. Wouldn’t you agree with that?
Krysten LeFavour:
I would agree, absolutely. I would agree.
David Craig – Host:
Now one of the challenges in the worker’s compensation world is that, and you mentioned it earlier, is that the employer gets to pick the doctor.
Krysten LeFavour:
Could you tell I was frustrated about that?
David Craig – Host:
Yeah.
Krysten LeFavour:
One of my least favorite parts of the law.
David Craig – Host:
I think we need to talk about that a little bit because a lot of people are shocked that their employer says they’ll send them to a clinic to begin with and then that clinic will send them out. So, let’s talk a little bit about the fact that they get to pick a doctor. Is this a general practitioner? Like if they have a shoulder injury, do they have to send them to a specialized doctor? I mean how does that work? How does the employer pick the doctors or the insurance company?
How Does It Work When the Employer Picks the Doctors or Insurance Companies?
Krysten LeFavour:
I would say a lot of employers now or insurance companies have urgent care type clinics or sports medicine type clinics that they send their employees to first. So, Concentra or any kind of urgent care clinic out there that they send them to, to evaluate them, and then that doctor may decide if they need physical therapy or if they need a specialist. So, then they may send them on to a specialist like an orthopedic specialist or surgeon or they may get imaging, but oftentimes it does start off at that urgent care clinic to be the quarterback of all of their care. I’m not saying that in worker’s compensation that all of the doctors are not the greatest, but I would say that on average, they’re probably a little bit more conservative. So, they’re definitely going to start off with more conservative treatment and escalate from there. I think that that’s important because in personal injury cases, you want to make sure that they’re getting the best care, so that the evidence of what they’ve went through is available when we’re negotiating a case with the negligent party.
Krysten LeFavour:
So oftentimes, I know that in my practice, and with Craig, Kelley & Faultless, is that when we have a party that is maybe injured and they have a personal injury claim but they also have a worker’s compensation claim, which you can have both, then it may be important to send them to another doctor, just to make sure that the care is going correctly, that there aren’t any other things that could benefit the injured worker and to make sure that we have our own expert that’s only there for the employee and not just there for the employer or their insurance carrier.
David Craig – Host:
I think that’s an important part, and I don’t see a lot of lawyers doing this. At Craig, Kelley & Faultless, we handle significant cases in Indiana, Ohio, Kentucky, Missouri, and Illinois, and throughout the country, but those are the main states that we practice in. We had an Ohio case where a client had a traumatic brain injury and worker’s compensation doctors said that the person had got as good as he’s going to get and that he was capable of going back to work and this guy happened to drive a truck, a semi tractor-trailer, but he was hit by another 18-wheeler and he was hit hard in Indiana, had a severe brain injury, and the Ohio doctors wanted to put him back to work, and he was not capable of functioning.
David Craig – Host:
In that case, we actually had him examined and tested, we actually sent him out to the East Coast to one of the top medical facilities for brain injuries in the country, and they tested him and found that he should not be driving, he shouldn’t be driving a car let alone a semi, and with that report, we were able to do that with the worker’s compensation lawyer, we were able to give that report. We were doing it in our third-party case. We were doing it in our case against the semi driver who rear-ended him, but that report, we gave it to the worker’s compensation doctor or lawyer over in Ohio and then that lawyer was able to get the benefits reinstated and was able to continue to get him treatment.
David Craig – Host:
I just think that, again, like we talked about is the importance of the worker’s compensation lawyer and the third-party lawyer like myself to work together and to have medical examinations so that they can help the worker’s compensation lawyer with their case and their claim.
Krysten LeFavour:
Yes, absolutely. I think that coordination and that communication is key. I think a lot of times the pitfalls become when the personal injury lawyer is going straight ahead on their case and they’re not paying attention to what’s going on in the worker’s compensation side of it, whether or not the employee is not getting great care, or they’re still under treatment, and they try to settle the case or just all of those things that when you have both cases, which you often do, that you have to coordinate and communicate with that worker’s compensation lawyer so that the employee or the injured person is taken care of and maximizes really their benefits on both sides of it, on the personal injury side and on the worker’s compensation side. So, I mean I think it’s very, very important to have that communication, or at the very least knowledge about how worker’s compensation works so that you can take appropriate steps to protect your clients.
David Craig – Host:
As you alluded to earlier, now because of that case and other cases like that, here at Craig, Kelley & Faultless, what we do is whenever we have a significant case, where the person was working and there’s a worker’s compensation claim, we now get them examined by an independent medical doctor in the very beginning, and that is good for our clients too because it gives them a second opinion. So, even if the worker’s compensation doctors are great doctors, and she or he provides proper care, it’s reassuring to our clients to know that another doctor is looking at this and if it’s good care, they can confirm that it’s good care, and if it’s not good care, they can tell them what they should be doing and then we can then give that to the worker’s compensation lawyer or use that in the worker’s compensation claim to help our client maybe get additional treatment or to at least verify it. We’ll get them examined in the very beginning, and then every time there’s an examination being done by the worker’s compensation doctors, we then send them back to the IME at the same time so that they’re comparing apples to apples, and they’re examining the patient at close to the same timeframe so the symptoms should be the same, the problems should be the same, and hopefully the diagnosis and treatment plan are the same or close.
Krysten LeFavour:
That’s a huge benefit. I don’t think that I know of many other firms that handle it that way. I think they just allow the employee to go ahead and get the care through worker’s compensation, and they don’t deal with it until the end, until they’re at what we call maximum medical improvement. So, having that knowledge and working with the worker’s compensation lawyer I think is really important.
Krysten LeFavour:
I think one of the other issues as far as having knowledge of the worker’s compensation system is just identifying that you may have more than one type of case. I mean that’s one of the pitfalls I’ve seen lawyers fall into where they get a case in, and they think all it is, is worker’s compensation, and there may be other types of cases, whether it’s a negligence case, a personal injury case, an uninsured motorist case or a products liability case. I mean there’s multiple different cases where you’re going to have two different kinds of cases, a worker’s compensation and a third party case and that can get a little bit complicated in and of itself because there are times where we’re arguing that it isn’t worker’s compensation. I had a case recently where the person that I was representing was in a vehicle with a person. They were independent contractors, and the person who was driving was at fault. Now if it’s under worker’s compensation, you might get less benefits and you can’t sue a co-employee in negligence. So, we were arguing in that case that he was an independent contractor based on all of the facts so that we could then make a negligence or third-party case.
Krysten LeFavour:
So, it’s interesting because these things really get a little complicated and hard to navigate. Again, I think going back to where I started is that when you’re dealing with the worker’s compensation law, and sometimes it’s hard to navigate and know all of these rules and what is the best thing for your client or what’s the best thing for you once you’ve been injured.
David Craig – Host:
Yes, and you alluded to it, I want to talk a little bit more about it, uninsured motorist cases. So, another problem that I see is sometimes when a person gets hurt on the job, lawyers assume, and there’s nobody else to sue and they can’t find anybody else to sue, then they assume that it’s just a worker’s compensation claim, and there’s no other claim. We handled a case not long ago where employees were delivering mattresses. It was a driver and a new trainee who was being trained. They got to an overpass and the overpass was too low, and the box truck they were driving wouldn’t go under the overpass and it was night. So, the driver asked the new employee to get out and help back him up so that he could turn around on the roadway.
David Craig – Host:
While she was behind the box truck, a car came out of nowhere, hit her, severely injured her, and caused a major, major brain injury, and caused her severe injuries. Unfortunately, that car took off and fled and they didn’t have a license plate. It was not an area where there were any security cameras. The driver of the vehicle only saw the color of the car but didn’t even know what kind of car it was. They filed a police report, but they never were able to find the car, even though there was a little bit of the car there.
David Craig – Host:
So, that case was referred to us to take a look at and I think that a lot of people, a lot of lawyers unfortunately, a lot of people out there think, “Well, I got hurt on the job. The car’s disappeared, there’s nobody for me to sue. I’m out of luck, I just only can get my worker’s compensation benefits,” and in fact, that’s not true, is it?
What Is an Uninsured Motorist Claim?
Krysten LeFavour:
No, absolutely not. I mean in that case and one of the types of claims you can make is what’s called an uninsured motorist claim. So, for the vehicle that they were in, that she had just got out of, she would potentially have a claim for her personal injuries. An uninsured motorist policy stands in the shoes of the negligent person. So, the person who fled that was actually at fault, that uninsured motorist policy which may be on that truck is just the same as a negligence claim. You get the same damages. So, she would have a worker’s compensation claim which means she’s going to get her benefits upfront, her medical and her temporary total disability, potentially a PPI, but then she can also make a claim for uninsured motorist against the vehicle’s policy for her truck, for the work vehicle.
Krysten LeFavour:
One of the interesting caveats of worker’s compensation is that although there may be subrogation on that policy, if you also have your own uninsured motorist policy, your personal uninsured motorist policy, you may have a claim against them as well and they don’t have subrogation. So, it’s interesting because you’ve got to look for all of these different claims. I used to teach, and I still do teach, the lawyers at the law school worker’s compensation, I teach a couple of classes. Unfortunately, they deal with adjunct professors and one of the things that we always teach them is make all the claims, like make sure you’re going through all of the different kinds of claims because you don’t want to go past the statute of limitations because you didn’t think, “Oh, there’s a worker’s compensation claim element on this one.” Or “Oh, there’s an uninsured motorist claim,” or “Oh, there’s a negligence claim.” You want to look through all of those potential possibilities and not just assume that you only have a worker’s compensation claim.
Krysten LeFavour:
Let’s say you’re a delivery driver, and you go to another facility to drop something off and maybe they haven’t iced. I mean we’re getting ready to have a huge ice storm, although this will probably come out after that’s happened, butut they haven’t salted where the snow and ice is and you slip and fall going into that facility. You may have a premises liability claim against that company in addition to your worker’s compensation claim against your employer.
Krysten LeFavour:
So, the only claim you can ever make against your employer is in worker’s compensation unless there is intentional behavior. However, you can make claims against other negligent parties, like in that incident, or I’ve also had cases before where there was maybe a piece of machinery that you were using while working and it was defective. The stop button didn’t work when you did the emergency stop button. Then, you may have a claim against the manufacturer of that piece of machinery. There’s a lot of things that go into a product’s liability case, but again, I think the most important thing is that do you have an attorney that knows worker’s compensation, but then also has enough knowledge to make sure if there is a third-party liability case, is there a case against a motor vehicle driver or a semi-truck driver or is there a case against a company for the premises liability. You just have to explore all of those different options to make sure that you’re protecting your clients.
David Craig – Host:
One of the last cases that I tried before COVID kind of shut the courts down was a delivery driver to a hospital up in Anderson. The semi-driver brought merchandise or supplies to the hospital, and he pulled up and it was icy, and the stairs to the loading dock were ice-covered, and he went in and told the folks, and unfortunately, on his way out he fell. So, he was injured, he aggravated a pre-existing condition in his back, and so he had worker’s compensation benefits that he ended up having surgery.
David Craig – Host:
So, the person, he got injured on the job. He walked up, he slipped and fell. So clearly, he’s going to get his worker’s compensation benefits because regardless of whether he’s at fault or not, worker’s comp is going to pay that, but we looked at it, and again, another law firm referred the case to us and said, “Well what do you think? Do you think the hospital is responsible for having slippery steps? Was he less than 50% at fault in Indiana, because if he’s 50% or more than 50% at fault, he loses.”
David Craig – Host:
So, the law firm said, “Do you think that he’s less than 50% at fault or 50% or less?” We looked at it and said yes, the other side disagreed with us, so we had to go to trial and the jury gave us around $1.7 million and reduced a little bit of the fault to around $1.2, $1.3 million. We had worker’s compensation actually testify on that case, the worker’s compensation doctor testify on that case.
David Craig – Host:
So again, I mean, luckily other law firms looked to us and said, “Hey, take a look at these files,” but whenever somebody’s hurt on the job, and it’s catastrophic or it’s really bad, then a personal injury lawyer with experience needs to look at it and do exactly what you said, which is look for anybody else who’s responsible and any other insurance policy that might be applied. The worst thing is they ask the lawyer, and the lawyer looks at these cases and they don’t charge them to look at it, and they say, “No, I can’t help you. All you have is a worker’s compensation case.”
David Craig – Host:
On the other hand, on a case like the guy who slipped on fell, I mean there was millions of dollars of uninsured motorist coverage available for us, and there’s other cases like that. Sometimes the employers have big insurance policies, big uninsured policies, on the vehicles that they have, especially in semi tractor-trailer cases or box truck delivery cases, and so you need to consult with not only a worker’s compensation lawyer but also a lawyer who handles these third-party cases in order to be protected. You only have a certain amount of time to do it, and unfortunately, you have to do the investigation on the front-end and so you have to get hired quickly so you can protect your clients.
Make Sure to Do the Investigation Early
Krysten LeFavour:
Absolutely. I mean that’s one of the things that, again, you always want to make those claims. You want to make sure that you get your investigation in and determine if there are any other responsible parties in addition to the worker’s compensation claim. So, I think it’s important to have an attorney that’s looking into those things, do the investigation early to get all of that information, so we don’t lose it. Because people forget things and evidence gets lost, certainly.
David Craig – Host:
Yes. Well, and it’s important. I mean we handle semi tractor-trailer cases all over the country and so every state has a different worker’s compensation law because worker’s compensation is something that’s state by state, and it’s different in every state, and the statute of limitations is different in every state. So, one of the things that we look at is if it’s a state that we’re not familiar with, we usually have you reach out and talk to somebody like yourself in the other states, so that you can work with them so we can make sure that our clients are protected.
Krysten LeFavour:
Yes, absolutely. I mean the interesting part is you could have a multi-jurisdictional type case. So, you may have a semi-truck accident in Indiana, but your employer is in Maryland and so you need an attorney in Maryland to handle your worker’s compensation claim but then also to coordinate with you on again the medical treatment, the subrogation, when to settle, and when not to settle.
Krysten LeFavour:
So, every state has a different worker’s compensation system. Some are better than others. Some have better benefits than others. Illinois right next to us has great benefits for worker’s compensation, but you have to coordinate with all of the different rules because every system of worker’s compensation is state based. Other than for federal employees, like USPS workers, there’s a federal system, but otherwise, if you’re an employee, it’s just based on your state and every state has different rules and sometimes it’s incredibly different. In Ohio, they actually have a system that’s run by the state. Kind of like unemployment here in Indiana where you get your weekly checks from the Ohio Workers’ Compensation Board. Whereas here in Indiana, it’s a private system. So, that means that the employer is getting their own insurance policy to help pay for their worker’s compensation claims, they’re not going through the government. The government’s role is only to adjudicate, so if there’s a fight between the two private parties, then they are the judge and they get to decide who wins. Other than that, the government isn’t involved in providing those benefits at all, except for a couple special programs. So, I mean I think that it’s important to have an attorney as well that’s going to make sure that you may have representation in another state if you need it.
David Craig – Host:
Also, the other thing about worker’s compensation is that we talked about the subrogation rights. You have to pay back worker’s compensation, but that also varies state by state and there’s very few states, but there are some states, where that obligation is not the same as in the majority of states. I mean there are some states where you don’t have to pay it back or that the percentage is different, and so again, it’s the type of thing that you have to look at from state by state and you have to have a lawyer who knows the right questions. We have you call, I don’t talk to the worker’s compensation lawyers in other states, you do that. So, you talk to these folks. Regardless of where they’re from, if they happen to be passing through one of the states that we’re licensed in, or if it’s a bigger case and it’s a semi case, we handle those all over the country. So, you look at those and you make sure that the worker’s compensation part of it is taken care of and handled properly.
David Craig – Host:
Well Krysten, what else? Anything else that you think is important? I know we could spend weeks talking about worker’s compensation. I encourage people who have any questions about worker’s compensation to give you a call, look on our website, ckflaw.com, and that you can find, there’s a really good video about Krysten that talks about who Krysten is, and I would encourage people to go to our website, look up Krysten, look at her video, look at her background, and I’m sure Krysten would be happy to answer any questions that you might have that deal with worker’s compensation.
Krysten LeFavour:
Absolutely. I think one of the important things is just remember, it is a free call. I mean give us a call. It doesn’t mean that you’re going to have to hire an attorney. Sometimes in worker’s compensation, especially if there isn’t a third-party case or a negligence case, sometimes you may not need the lawyer, but it may be helpful to get a little guidance or know if everything’s on the right track. So, I definitely encourage people to call and to ask those questions. I don’t mind giving out free advice all the time.
David Craig – Host:
Well, I appreciate Krysten for taking the time with us to be on our podcast. I feel very blessed that I have Krysten that works with us. It’s good to have really good people. At Craig, Kelley & Faultless, we try to hire the best, and Krysten certainly is one of the best in this area of law. So, thank you so much for having been on here.
Krysten LeFavour:
Thank you. Thank you very much.
David Craig – Host:
This is David Craig, and you’ve been listening to After the Crash. If you’d like more information about me or my law firm, please go to our website, ckflaw.com, or if you’d like to talk to me, you can call 1-800-ASK-DAVID. If you would like a guide on what to do after a truck wreck, then pick up my book, Semitruck Wreck: A Guide for Victims and Their Families, which is available on Amazon or you can download it for free on our website, ckflaw.com.
