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Dimitry K., Esq.
Dimitry K., Esq., Attorney
Category: Employment Law
Satisfied Customers: 41221
Experience:  I provide employment and discrimination law advice in my own practice.
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My husband was injured almost 4 years ago in Omaha, Ne at a

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My husband was injured almost 4 years ago in Omaha, Ne at a railroad he worked for and at a manufacturing company. At the railroad a 900 pound joist broke and pinned him to the ground. He suffered debilitating migraines and a shoulder injury that required surgery. Because he was in so much pain, he couldn't perform the welding job he had done there for over 20 years. He filed a workman's comp case and retained an atorney. The railroad put him on light office work. Seeing that we had a family to raise and I wasn't working, he took at part time job at a manufacturing warehouse as a forklift operator. The 2nd week there he was hit by another operator while 35 feet in the air. The other operator was suspected to be under the influence. Again, my husband filed a workman's comp case and reported this to his attorney. We have been going back and forth for almost 4 years and all they want to offer him is $12000 with no medical bills paid. They say his credibility is weak because they have him picking our 5 year old daughter up when she was sick and they have tape of him walking. This man has suffered with pain every since the accidents and I think the offer is grossly unjust, and his attorney has done a piss poor job of fighting for him. What are your thoughts on this matter and what should we do?
Thank you for your post.

I am sorry to hear that you are in this situation. To ensure that I provide you with th best information, do you mind that I become fairly candid with my response and potentially provide you with information based on your facts, some of which is likely not to be favorable to your husband's case? Or are you seeking solely an answer from your point of view and position? I ask as in this case the answers may be somewhat different. Please advise.
Customer: replied 4 years ago.
Yes, please be candid and let me know if it is in our interest to let a judge decide or accept the $12,000.
Thank you for your follow-up.

I see two very legitimate concerns here. First, if the company has images of your spouse picking up the child, it is most damaging as it does go against his claim that he is disabled and unable to work. Insurance companies routinely investigate and even follow potential claimants around to catch them violating their own work restrictions. I do not know if that is the case here, but if such evidence exists, it severely causes the value of your case to potentially drop.

Second, the fact your husband took a job is very damaging and is damaging from two fronts. First, it can be construed as a violation of his existing disability claim--they can paint him as a liar because someone on disability and claims is unable to work should not be moonlighting elsewhere. The other factor is that it is a violation of employment itself--the first company is under no duty to provide disability if a person works elsewhere.

Speaking solely from a position of the insurance attorney I would offer very little money and would suggest to the employers to take it to court. Those factors are enough to potentially discredit your spouse. This is also not your attorney's fault, the situation is not favorable. I cannot tell you how extensive the injuries may be, but in this situation if the attorney is suggesting you take it, it may be wise to do so.

Good luck.
Customer: replied 4 years ago.
No, he never claimed he was unable to work, only that he couldn't perform the job he was previously doing. Plus they company moved 2 hours away and with the paid meds he was on and the doctors advice, he couldn't make the drive or do the physical work. In regards XXXXX XXXXX picking up our daughter, she was sick. He carried her in the house, with a back brace on that he wears 24/7. This man sleeps on the floor with his back brace on in constant pain. He filed the lawsuit because of the injuries, we never claimed that he wouldn't be able to work again, only, that he was injured and it was the companies fault. There are alot of people who are injured who may not be able to perform the job they were previously doing, but can still work doing something lighter. He isn't playing sports or jogging.
Yukari,

If he was unable to perform the work, he first had to contact the employer and request 'reasonable accommodations' under which he would able to get work from the initial employer first. Only if they were unable or unwilling to accommodate, or granted permission for him to seek an another part-time position could he end up working elsewhere. Worker's compensation and disability payments are given to those who cannot work, not to those who cannot work just for the position they were employed in. Please understand that I am not trying to convince you, merely pointing out what the argument would be on the other side.

Picking up the child, back brace or not, when someone claims a back injury, grants the insurance carrier a claim for potential insurance fraud. It is irrelevant how he sleeps or what pain he is suffering, which I imagine is significant, what matters is what he is seen doing. That is not permitted and grants the other party means to discredit the claim, or at least the severity of the injuries.

As I stated, I am giving you my views based on your desire for candor. I am looking at this based on how courts would evaluate it if it ends up going that far, and those factors I mentioned are quite damaging.

Please be well.
Customer: replied 4 years ago.
Does he have a claim against the warehouse for being run over by another operator, who had a histiory of accidents and does he have a claim against the manufacuter of the joist for the joist breaking and pinning him to the floor, causing pain and suffering?
Yukari,

He is beyond the statute of limitations for filing against the manufacturer at this time. Likewise, after 4 years, he is also beyond the statutory period for filing against the other business. You can provide me with your direct location and can double-check, but in most state the statute of limitations for personal injury claims is 2 years from the date of injury.

Good luck.
Customer: replied 4 years ago.
The accident at the railroad happened on February 10th, 2010 and the warehouse accident happened on September 2, 2010.
Thank you for your follow-up,Nebraska has far more lenient statutes than most. There the statute of limitations on personal injury is 4 years from date of injury, not 2. Consequently both claims are potentially possible to be pursued.Good luck and kindly rate my answers to you at this time so I may obtain credit for my work. Thank you!
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