On Tuesday’s The Tom Becka Show/AM 1290 KOIL, I had the opportunity to discuss with Tom the recent building collapse at International Nutrition. The discussion surrounded the legal rights of those injured and killed as a result of the collapse. International Nutrition is responsible for workers’ compensation death and injury benefits. We also discussed the possibility of a negligence or product liability claim against possible third parties and how those two claims run together. For more information regarding workers’ compensation benefits please contact my office for a free consultation.
Transcript of the interview
Tom: Today we’re talking about the collapse of International Nutrition building and the tragic death of 2 people and the injured others and people talking about that.
Now, I of course look at it through the perspective of the media and so when I was having conversations earlier today with my media buddies. We’re all talking about how the coverage was, how … what the TV stations did, what the other radio stations did, the newspaper and all that stuff.
I would imagine if you were a doctor, you would be talking about the trauma and how the hospitals handled it or if you were a police or fire fighter, you’d be talking about it in a different perspective or a worker in a factor would be talking about it from a different perspective because everybody looks at things their own way.
The conversation I was having with my buddy here Jeff Putnam, sort of fascinated me because I didn’t realize or didn’t think about the illegal ramifications about what is going right now for the people that were involved in the accident and also as far as the companies concerned and my buddy Jeff Putnam’s with me right now.
Hey Jeff. Welcome to the program.
Jeff: Hi Tom. Good afternoon.
Tom: You are a … you’re an attorney and you do focus a lot on work place incidents right?
Jeff: I do. I do.
Tom: On workmans’ comp and things like that.
Jeff: Right.
Tom: What I thought was interesting is that, I didn’t know, is that if whatever happened to the building and we don’t know what it did yet, whatever happened to the building, we don’t know what it was, if it was the company’s fault, all of these people will be entitled to would be workmans’ compensation?
Jeff: Well that’s correct and first of all Tom, I want to express my condolences to the families, they’ve lost love ones or to those injured. I mean this is a horrible tragedy and prayers go out to them and as you and I were talking about today, there’s 2 possible claims in a situation like this.
One is a Workers’ Compensation claim, that is status based and were you working at the time you were injured.
There’s another claim that could be brought and it’s a little bit more difficult to discern which would be a possible third party claim. Where there might be a claim against someone other than the employer of International Nutrition, someone that might be at fault or responsible for this tragedy, for the collapse. However, that would take a little bit more work to handle and to really work up and find out what exactly happened.
Tom: In other words and we don’t know what did happen, but in other words, if they could find or prove that the reason that this building collapsed was that there was a faulty valve or something of some sort of that or that a contract worker came in and did a faulty repair or something on those lines, then it could be … you’d go for the third party and when you go for a third party, then you can go and you can sue for pain and suffering and punitive damages. But if it happened and it was the company’s fault, then all you get is workmans’ comp which is … that’s 60% … 66% of your average salary and your medical bills taken care of right?
Jeff: Right. And in work comp you don’t look at fault, you don’t look at who did something wrong. The question is where you injured in the course and scope of employment. If you are, you automatically get benefits and even if the employer’s at fault or the employee is at fault under certain circumstances, the employee could be denied benefits if they’re too much at fault but that rarely happens.
Usually it’s status based and then they’re entitled to benefits but they’re capped and they’re not paid in full. So even if you have a valid worker’s compensation claim, you’re not going to be paid in full.
For instance if you’re off of work, if … to those who are injured and missing time, they’re entitled to 66% of their average weekly wage which is the formula that we have, the courts have set up as to how you determine benefits.
Tom: Is that set in stone or does it vary? I mean in other words, could somebody get 58% and somebody else get 69% or is it 66 and that’s it?
Jeff: Well the 66% is based upon the weekly wage. There can be disputes as what an average a weekly wage is and we’ve actually gone in front of judges and argued it should be $560 or $620. And it make a difference to somebody over a long period of time even though small amounts but those are something … those are some of the issues we can litigate.
The Worker’s Comp, they are capped so you don’t get that … you’re not paid in full. Where the third party claim is a … is not capped for damages and those are based on your full damages.
Tom: Okay. Now …
Jeff: But you have to prove fault for that.
Tom: Now when you said third party, I’m assuming that if a co-worker was at fault, that does not qualify as a third party, that’s the same as a company doing it, right?
Jeff: Correct. Correct.
Tom: Okay.
Jeff: This would … if someone else outside of International Nutrition was responsible for this and I have no idea what the cause of the collapse would be but that’s what you know, OSHA is in there right now. But if you have a … if the people who are injured of have lost lives in this tragedy, this is probably the time where you need to an attorney and find out what type of information aside from OSHA can be gathered right now and that usually involves expert witnesses coming in and doing a lot of work and finding out, doing some digging and finding out who’s the responsible parties if there are.
Tom: And then very well may not be. And I don’t know if you know the answer to this question but we had a call earlier from a gentleman who works for the Union and he was talking about OSHA is spread very thin right now with sequestration and OSHA spread very thin and therefore they don’t get inspected, these plants don’t get inspected as regularly as you might think they do.
Would you have any idea, if OSHA came through and randomly inspected 100 factories, 100 work places, what percent … how many of those would have serious claims against them?
Jeff: I don’t know what the percentage would be but I can tell you this in my practice, I see it quite a bit.
OSHA, they can’t be everywhere all the time and OSHA does have policies where you can make a complaint and that can be confidential and I’m not sure how well they get to those. Obviously OSHA has a system where they measure the complaints by severity, could this complaint cause death type of a thing, they will investigate those further.
Now for instance, this incident, OSHA would probably been on there on side within 8 hours, that’s their rule, where someone has dies, they will have someone there immediately inspecting and they will work up a report and possibly fine International Nutrition or not, you don’t know, but the issue beyond that is if you’re looking into a claim, a third party claim, you want to rely on OSHA a little bit but you probably need to get your own people and to take a look at the evidence and see what … who’s responsible if someone is.
Tom: Let’s talk about this a little bit because … we’re not doing this interview to try to recruit any business or anything like that.
Jeff: No.
Tom: Okay?
Jeff: No.
Tom: I just want to make sure that … but I found this interesting, I mean I understand, I mean yes, obviously if you are involved, if you are hurt, if you are injured, that’s going to be one of your main concerns. We got bills to pay, what happens? Who’s … I mean who’s going to take care of all of this, that’s got to be a concern, at the same time there’s got to be some distance, you don’t want to be that ambulance chaser, just knocking on their doors and saying “Hey, sorry about your loss, but here’s my card.”
Is that … do lawyers tend to … I’m not talking about you. Just about lawyers in general. Do they tend to go after people like this? Like the image might be or do most lawyers just sort of wait and let people come to them?
Jeff: No, for instance I have a website, just has information to figure out … people need to educate themselves into what the law is and sometimes people have been paid, underpaid for years on claims and they never knew that and the only thing I always tell people is … there’s a lot of really good lawyers in Omaha, go talk to anybody and just figure out what your rights are and there’s no obligation. I could tell you, I don’t know any lawyers that would have problem to sit down and tell you “Here’s what you should get paid,” “Here’s the medical bills that they should pay,” now, and we can tell you here’s where some of the problems may arise in the future, sometimes its medical treatment or they may not be paying you correctly or if you can’t return to work, there are benefits that are available out there, vocational rehabilitation benefits help you get into another line of work.
They all cost money and if you’re relying upon somebody else to tell you what those are, you want to get yourself as educated as possible.
Tom: Okay. Is there a problem, in other words is there a time frame when they have to get any of this thing done?
Jeff: Well it doesn’t…
Tom: Or I mean … if they don’t start …if they don’t start filing or moving forward with this within 90 days, would they lose any benefits or …
Jeff: Well …
Tom: Do they have to wait and …
Jeff: There’s a 30 day window to make that the insurance company were responsible party on the worker’s compensation claim should make payments, whether it be death benefits to the next of keen of the widow or children of the employee who died.
They should start making those payments right away, unless there’s some type of dispute as to whether that person was employed at the time. Sometimes we get into arguments about that as well, where the employer claims the worker is an independent contractor. You can have a lot of different issues. But if there is no basis for denial, payment should start within 30 days and there are penalties that sometimes can be imposed.
Tom: Now you say that if you are an employee, you’re … if it’s the employer’s fault then you’re ability to sue and the benefits you would get are limited versus if it’s a third party. What if the situation where I’m doing business, maybe I’m a sales person, maybe I’m a vendor of some sort or I’m delivering or whatever and something like this happens, I don’t work for that company when I’m actually working while there, them is that sort of a third party situation then where I might have more benefits than a person who is actually working at that operation?
Jeff: You could have more benefits. I tell you this is not the place to get your benefits because they’re very difficult cases. I mean all cases are difficult, but if you’re proving negligence against another party, if there’s another party, not your employer, you could bring a separate claim above and beyond your worker’s compensation claim. But the worker’s compensation claims should open immediately, that should be an open claim right now.
And then whether there’s a third party claim, some other entity aside from International Nutrition, if they’re responsibly, that would be a negligence claim or a strict liability type of … some type of liability claim.
If there’s … and that has to be proven though.
Tom: What about the company in a situation like this, and then not specifically International Nutrition, but just in general, if a company’s involved in a massive disaster like this, are they best to lay low, are they best to come to the forefront and say “Here, we want to help,” what should … I mean, everybody’s protecting their own interest here at this point in time, what a company do in a situation like this?
Jeff: Well I think they’re probably talking to their counsel as well and being measured in what’s going on. But like I said before that the employees of International Nutrition are covered under worker’s compensation.
Now, for instance, there could have been another employee in there, maybe a third party, maybe a plumber was there from working for a different company, he might have a claim for worker’s compensation under his own plumbing policy and then might have a claim against International Nutrition or that’s for example.
Tom: International Nutrition.
Jeff: That’s an example of that comes up quite a bit.
For instance I represent truck drivers and they might get in an accident where it’s someone else’s fault, so you have a worker’s compensation claim as a truck driver and then you have a claim against that other bad driver outside of worker’s compensation.
Tom: And right now without knowing who’s … what caused the collapse who’s at fault here, right now is sort of a wait and see approach as far as any of that goes right?
Jeff: Yes and time is of the essence too. I mean it’s … and I’m not pushing people to go talk to lawyers, but you should talk to lawyers, earlier on the better and to find out before evidence is lost, is it destroyed? Sometimes you have to have your own experts come out and take a look at the medal, what’s out there? Would have somebody go through there and take a look at it before that evidence gets lost and record it, photograph it, video, whatever you need to do because time does become an issue.
Tom: All right. Jeff Putnam. It’s a touchy situation after something like this happens but you’re right there, there needs to be at least some form of legal counsel on something like this to make sure that you don’t do something stupid right?
Jeff: Yes, just educate yourself and no matter what type of injury it is and like I said, there’s lots of lawyers out and they’ll spend the time and sit down and talk to you. They want to make sure you don’t lose some of the rights that you didn’t even know you gave up.
Tom: All right. Jeff Putnam.
Jeff: All right.
Tom: All right man. Thanks for your time.
Jeff: Okay Tom.
Tom: All right. Talk to you later.
Jeff: Okay.
Tom: I hadn’t even thought about it in that perspective but I would imagine that if you were one of the people affected by that, you definitely would be looking at it from that perspective.
Quick break, more on the way. This is the Tom Becka program here on the Mighty 1290 Koil.
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