Airline Personnel Must Determine whether to File a Workers Compensation or a 3rd Party Claim
The airline hub of Las Vegas, Nevada means that many airlines use Las Vegas as their hub of operations or do a significant amount of business in the region. With so many fight attendants having to stay over in Las Vegas, the natural percentage of accident victims increases. Often these are ground transportation accidents, such as shuttle or van accidents as the workers are shuffled to and from the airport. Other times they are taxi accidents. The tricky issue with out of state victims who may be “on-the-job” during their visits are similar to convention attendees who frequent our millions of square feet of convention space.
When a person is on the job they have an option of pursing both a worker’s compensation case and a 3rd party case against the at-fault party. Benson & Bingham Accident Injury Lawyers, LLC often tell our clients that worker’s compensation may or may not be a good way to go when approaching the case. The reasons are many, but we will attempt to outline the benefits of both. Worker’s compensation insurance kicks in without regard to fault. Thus, a person can be injured by his own doing or by the actions of a tortfeasor (fault creator). Worker’s compensation will typically pay out 2/3 of the salary while the victim is unable to work. This includes not being able to return to full-time duty if light duty is not an option, which in most aircraft jobs, is zero. The other benefit of worker’s compensation is the medical benefits. These benefits (or so called benefits) are insurance based. There are NO pain and suffering benefits using worker compensation claims. And, often the claim must be made in the home state of the employer–not Nevada, and will usually require the help of a worker’s compensation attorney in the home state to navigate the worker’s compensation system.
The doctors are hired by the insurance company which inherently creates a conflict of interest in their medical opinions. The urgency to get an employee back to work creates less financial burden on the insurance company. This, in effect, can distort a 3rd party personal injury claim. Not only are the doctors inherently biased, but the case is often sub-standard. Depending on the facts (which are many to consider), we will advise clients to forego the worker’s compensation claim altogether. Rarely do we encourage worker’s compensation claims. Why would we want an “enemy” doctor to be treating our clients? We don’t. The primary reasons we do encourage worker’s compensation claims is to ensure our injured clients have income during a very stressful and economically draining event. Plaintiffs must be able to live during the ordeal that the did not create. The real kicker in the analysis is the issue of repayment. Once we have collected the total value of the case, we must then pay back the workers compensation provider for all expenses paid out. This is normally called the worker’s compensation subrogation lien. So, in effect, our office becomes a collection agency for the worker’s compensation company. The good thing however, is that we are allowed to deduct a legal fee for the collection of monies owed back to the carrier. This is called the “Breen Formula” in Nevada for a case called Breen vs. Caesars Palace. This case stands for the proposition that a legal fee should be deducted from the lien for the efforts expended by the personal injury lawyers on behalf of the flight attendant, or other on-the-job victim.
Another concern, is the 3rd party insurance coverage. If the coverage is very limited, foregoing worker’s compensation could be a disaster. Given the timelines and procedure rules with a worker’s compensation claim, it is important to use it if the facts support using it. For example, if a person is severely injured through no fault of their own, and they are on the job when they are involved in a car accident on the way to the airport, the insurance coverage needs to be analyzed quickly. If the coverage is minimal (Nevada only requires $15,000), and the injury value is hundreds of thousands, workers compensation is really the only remedy. Just the same, if the injuries are unknown (people often don’t discover the severity of the injuries until months into treatment) it usually is best to error on the safe side and pursue the comp claim. Much of what is discussed here is to help a person understand that if they are on the job during and accident, it may not be the only remedy. Call Joseph L. Benson II, Esq. at 702-382-9797 if you are a flight attendant, pilot, conventioneer, or other on the job employee injured in Las Vegas or Nevada, and need help navigating the conundrum of dual claim accidents.