Many times the right answer to the client’s question isn’t necessarily about law. At time’s it’s not even what the client may expect to hear, but needs to hear. This time the right lawyerly advice is just plain practical. I’ve never viewed the job of being a good lawyer as one requiring only legal advice. To the client knowing the limits of the law and what can happen next is as important as knowing what is going to probably happen a year from now. At times, and this is one of them, we can’t offer quick and painless solutions, because the practice of law is a profession of sewing patches on an old pair of worn jeans. Our advice can never transform something old into something new. The law can only add a patch here and there, to cover the areas where time has wore holes in the fabric of the client’s life. My practice is built on helping those who work for a living. Which means the fabric of life I work with can be full of patches.
In this practice built on the backs of mostly working stiffs, we aren’t the one’s people consult before problems develop; we get consulted after a problem occurs. Rich people like Buffett, Gates and Zell hire lawyers for pre-problem advice. Lawyers working for working stiffs (the typical non-billionaire) are more like a member of a loosely knit pit crew, working to keep the tires on till the end of the race. This is especially true in this economy when advising the working poor and the cash strapped middle class. So when a person is injured and then says, rock my world, we often times have to give them very practical advice about what the law can’t do and then how to just survive while we get busy trying to put air in flattened tires. That’s as true in rural Iowa as it is in urban America. It's just as easy to fall off a barn or silo as it is a roof in the city. Many farmers are just working stiffs moving from one paycheck to the next and when trouble comes knocking, they need this exact same advice. In this case today the guy fell from a roof and is in real economic trouble, because apparently no one purchased the right insurance coverage. In a struggling economy this is something personal injury lawyers deal with far too often.
There are times when employers cheat; they cheat by not buying workers’ compensation insurance. If your business tested pillows for a living you could probably get away with this, but in a high risk business like roofing it’s just a matter of time before an employee is injured. Buffett says when the economic tide goes out you can tell who is swimming without a suit. The tide has certainly gone out for this employer because the employee fell from heights and now his medical bills are mounting and the question is being asked, who will pay my doctors and the hospital? You have to be wondering why some employers can get away with this. The answer is pretty simple.
Tort reform made it even easier for people to get away with cheating the system; lying by omission to people desperate to earn a living became painless under tort reform, because tort reformers aren’t responsible to anyone but the Almighty dollar. If it was mean before tort reform, now it’s really mean. Before tort reformers ransacked the tort lie detection system lawyers had resources and the means to help more people with their legal problems. But with tort reform the reformers got what they wanted - the liars aren’t held responsible - and so now those injured and we the tax payers have to pay the proverbial economic piper when trouble comes a knocking.
You see that’s the funny thing about laws and juries that hold no one responsible, in civil matters someone still pays. Someone is still responsible and in this case it’s going to be the taxpayers. In a capitalist system there is no free lunch. Tort reform is a socialist concept that promotes the idea of no one in authority being responsible, but the taxpayers. Sounds a lot like China doesn't it?
As you read today’s Q&A ask yourself if I am right in my advice? In other words, you be the judge. I’ve said enough to set up the question so let’s get to it.
Question: I fell off a roof; have a dislocated shoulder and a compressed fracture in the lower back. Who is responsible?
Fact Detail: This guy was hired to work on a roof, although it’s not clear if he was supposed to be an employee or an independent contractor. He slipped and fell off the roof, but we don’t know what he fell onto or what made him fall. Was this a house or a commercial building? After impacting whatever broke his fall, he dislocated a shoulder and has a compression fracture in the lower spine. These are painful injuries and will affect two very important joints used frequently by manual laborers. This happened three weeks ago, but no one is lining up to provide medical coverage for the mounting bills. As you can well imagine, he’s getting worried and when working guys get worried they seek out a lawyer’s advice. There is the possibility he needs surgery on both the shoulder and spine. He tells me the bills are stacking up and “I am unable to work and don't have insurance”. And then he asks these questions: “Is the person who was paying my wage responsible? Is there anything I can do to get some kind of income while I cannot work? I do not have INSURANCE OR UNEMPLOYMENT BENEFITS.”
Oh woe is he… this is the beginning of a bad ending to a lousy movie.
Answer: Sorry to hear about your troubles. You're a roofer I take it. Tough business and one we deal with a lot in this area of personal injury and especially workers' compensation law. Many of my dealings with roofers don’t have good solutions because the roofing companies don't buy workers' compensation insurance. The smaller roofing companies not only don't purchase insurance, but they make those desperate to earn a living, sign an independent contractor agreement. To make matters even worse, these roofing companies that aren’t buying insurance can underbid jobs taking business from those playing by the rules. If as an employer you buy the insurance to be legal, then you have to include the premium as a part of your cost to do business, which means you’re bid will be higher than the guy without the premium. The first thing we need to figure out is whether there is or isn’t workers’ compensation insurance. That may be as easy as me calling the boss and asking. If they duck the question then it’ll be time to get Chris Godfrey’s office involved. Chris is Iowa’s Industrial Commissioner.
But this is a complicated issue because maybe the employer will argue that you don’t qualify for workers’ compensation. He may argue you were an independent contractor and agreed to work knowing there wouldn’t be insurance coverage. Did you? Did you assume the risks inherent in being your own employer? No. Okay, we can work with that, but if the employer says yes we have a ways to go before this question gets answered. The answer to your question isn't one I can answer with the little bit of information provided. I need to know more about how you were hired and whether the employer purchased workers' compensation insurance. There is a reason why seasoned lawyers ask a lot of questions. We need a lot of answers to know which way to go with our advice.
And know if the employer argues you were an independent contractor then it’s likely he has no insurance coverage so even winning the argument may ultimately prove fruitless. So what can I tell you today that will get to the matter really at hand?
You need a lawyer to look into the facts; if the employer refuses to cooperate the lawyer will in all likelihood engage the Iowa Industrial Commission to contact the employer to find out the answers to these questions. Then the lawyer will know how to proceed.
So here is what you do to start; get on the phone and call any of the local law firms who handle personal injury and workers’ compensation cases. If you don’t have health insurance think about buying but in the meantime ask the hospital about Medicaid, Medicare and hospital based programs providing financial assistance to the poor and needy. Yeah, put pride aside because this is all about survival. If the doctor says you’ll be out of work for at least the next year, then head down and apply for social security disability benefits. One other thing, get your spouse out of the house while you do Daddy-Daycare and she works to keep food on the table. You will be finding out how hard it is to do housework. I have no magic wand and please don’t expect miracles because after 30 years in the trenches I still can’t make a silk purse from a sow’s ear.
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