Workers Compensation Newsletters

Asbestosis and Construction Workers

Asbestos is a naturally occurring fiber that was used quite extensively in the insulation of buildings and for fireproofing. Asbestosis is a form of lung disease that results in scarring of the lung tissue by the inhalation of asbestos, which is made up of microscopic glass-like particles. Those individuals suffering from the disease are at an increased risk for lung cancer and mesothelioma.

Avoiding the Employment Relationship

In order to avoid the effects of the workers' compensation system, some employers will deliberately categorize a person as an individual contractor instead of an employee. Some individuals may even categorize themselves as individual contractors, preferring to reject the compensation system. Whether this categorization is successful, however, turns not just on the name given to the employment relationship. Rather, each relationship is examined on its own facts and will be decided based on the conduct exhibited between the parties as well as the work contract entered into between them.

Refusal of Employment as Employer Defense

Workers' compensation disability benefits are payable based on the nature of the employee's work-related injury or illness and the employee's corresponding lack of earning capacity. When an employee can return to work, his disability benefit payments will cease. In some instances, an employee's benefits are based on his inability to obtain work due to his condition. However, employers may counter that the fault lies with the employee, not his condition, because the employee has unreasonably refused to engage in suitable work. For example, an employer may prevail when an employee refuses a lighter work position offered by his employer. The employer carries the burden of demonstrating that the employee possesses the ability to perform the offered position.

Waiver of Limitations Period for Notice of Injury and Claim

As a general rule, if an injured employee fails to either provide timely notice of his injury or file a timely claim for workers' compensation, he will be denied benefits. However, in some instances, the employer or its insurance carrier may waive the limitations periods. For example, if an employer has actual knowledge of the employee's accident and resulting injury, the employer may be said to have waived formal notice of the injury. Likewise, if the employer voluntarily makes compensation payments to the employer, he may be deemed to have waived the requirement that the employee file a claim.