DAYCARE ABUSE & NEGLECT
What You Must do to Protect Your Child who is the Victim of Daycare Abuse or Neglect
Child abuse or neglect is a very sensitive issue. It causes great pain for both the child victim and the parents who must share this ordeal with them while they seek justice for their harmed child. Parents or any legal guardian who even suspect their child might be the victim of any sort of physical or emotional abuse or neglect by a daycare worker are right to feel outraged. Though their anger may seem boundless, it is very important to think clearly and proceed carefully. If one of your minor children whom you entrust to a daycare worker, foster parent, or institutional caregiver is the victim of neglect or even worse sexual or physical abuse, not only must you deal with your child’s terrifying experience, you must curb your emotions that surround this reprehensible crime committed against your child. It is common to want to lash out or quickly jump to incorrect conclusions. This is the first of many reasons why, if your child has suffered physical, emotional, or sexual abuse while in someone else’s care, a daycare abuse attorney with our Law Office can counsel and assist you in investigating your suspicions. If your fears are justified, this legal professional will help you seek justice from predatory caregivers who victimize and harm children.
Child abuse can occur in several forms. It can involve neglect, physical abuse, and sexual abuse, less dire but just as harmful as emotional mistreatment or other acts that harm children physically, emotionally, and psychologically. Over the years, national trends reveal consistent increases in the number of such cases reported, and also the number of civil liability and other damage-related lawsuits that are filed against those who neglect or abuse young children. Throughout America, at least five children die daily due to child abuse. Well over 20,000 children in the U.S. suffer every day from some form of abuse. There are at least a quarter million active child abuse cases investigated every year. Across the nation, child neglect makes up about half of the reported abuse cases; physical abuse is found in 15-20% of child abuse offenses, sexual abuse occurs about 10-15% of the time, while emotional and other less-destructive forms of child abuse comprise the rest of the reported complaints. This is truly disturbing. It strengthens the fact that every responsible adult must report suspected child abuse to law officials and the state agencies charged with investigating these destructive and predatory crimes. Small children can’t defend themselves from this monstrous behavior. So we must!
While daycare abuse incidents create attention-grabbing headlines, Texas agencies and law enforcement officials tell us that daycare-related abuse, foster parent abuse, and institutional abuse probably don’t comprise more than 10 percent of confirmed child abuse cases. So even though daycare abuse tends to be often over-amplified by media sensationalization, the actually confirmed episodes of “daycare or institutional child abuse” is smaller in proportion to the overall problem. When your child is the victim of such abuse or neglect it’s hard to find comfort when the percentages suggest your victimized child is the exception rather than the rule.
Recognizing Evidence of Possible Child Daycare Abuse in Your Child
If you suspect your child is the victim of abuse while at the daycare center, you can probably see subtle changes in behavior if you look carefully. Usually, a parent’s instincts and intuition will tell them, if their child suddenly begins to act differently. Sometimes those signs can be subtle and hard to pin down because, as all parents know, children, especially the very young ones, often have difficulty expressing their emotions or saying exactly what is happening inside their little minds. One thing is certain. Abused children often appear confused and afraid, especially when placed in situations, or with people, they don’t trust. Since children by nature are usually very trusting, quite often because they have no experience with abusive behavior, they don’t sense it is wrong. They may have been made to think if they tell you about their abuse, something even worse will happen to them or someone else in the family. There are many reasons why your child’s continuing ordeal of abuse at the hands of a daycare or other childcare professional can remain hidden and force your little one to suffer in silence. Below are some behavior patterns to look for in your child. They can provide clues that might tell you if he or she suffers abuse by someone who is supposedly a trusted childcare professional.
Any of these signs may characterize physical abuse:
If there are unexplained bruises or swollen areas on your child’s body.
There is evidence of unexplained injuries such as burns, cuts, scratches, or fractures.
They cry, fight, or display other aggressive behavior.
There are noticeable mood swings.
They display an abnormal fear of daycare.
There is an aversion to normal child-like activities or play.
They complain of pain but show an inability or reluctance to fully or truthfully describe how it happened.
Sexual abuse may be apparent due to any of these signs:
Difficulty sitting or walking.
Torn or stained underclothes.
Bleeding, bruises, or rashes in or near the genital area.
Sudden development of urinary tract or yeast infections.
An abnormal interest in sexual issues.
Inappropriate sexual playing anytime the child is with friends.
Fear of even innocent physical contact.
Emotional abuse may be apparent if you detect any of these signs in your child:
Speech disorders.
Delays in normal development.
Severe allergies, asthma, or ulcers.
The sudden appearance of habitual behavior, such as thumb-sucking, rocking back and forth, or aggression, such as biting.
Anti-social or hyper-aggressive behavior.
An inability to sleep or some other form of sleep disorder.
Pronounced extremes in the behavior, possibly even manic episodes such as quickly moving back and forth between passive to aggressive actions.
Signs that your child may be neglected at a daycare center may include the following:
A daycare that discourages unscheduled parent or guardian visitations.
Dirty diapers or dirty appearance.
Understaffing or a disproportionately small number of daycare supervisors to children.
Abnormal thirst or hunger after your child leaves daycare.
Withdrawal from normal children’s activities.
Aggressive behavior.
Just because you might suddenly see one or two such symptoms doesn’t necessarily mean there is abuse. Little children are changelings, and behavior you see one week might be gone the next. But if you see several symptoms listed above, take them seriously after a reasonable observation period. Maybe it’s time to investigate if something is wrong and why quietly.
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DAYCARE ABUSE & NEGLECT
If You Suspect Daycare Abuse, Don’t Panic: but Carefully Search for Answers
If you suspect your child is a victim of physical, emotional, or sexual abuse at a daycare center, you should quietly visit with your spouse or partner. Compare notes. Determine if your child is behaving unusually or acting differently than normal, especially immediately before or after the little one is at daycare. If you remain suspicious, the next step is to gently reach out to other parents with children at the same daycare center. Ask if they also have similar concerns or suspicions. They might also notice subtle changes in their children’s behavior too. If you reach a collective consensus that something might be wrong, don’t immediately conclude that a daycare worker is responsible. Sometimes the unusual behavior might be attributed to a bully at the center. Carefully conferring with other parents may help you identify this as the reason for children’s altered behavior and build a support system if something is amiss. Comparing notes with other concerned parents could help decide your future course of action. Typically, the signs of physical and sexual abuse are more apparent than those of emotional abuse or neglect. But emotional abuse or child neglect can leave deep and lasting emotional scars.
One way to monitor a child’s emotional health or behavioral changes in daycare is to pay meticulous attention to the words and expressions they use to describe their time there. Daily routine conversations about how things are going at the daycare facility can tell you a lot. So let your children know that you are interested and put them at ease when talking about it. If there is something wrong, if you and your child “visit about their daycare day” every day, they’re more liable to tell you if something is wrong and maybe why. Sometimes you must read their actions and listen to their words. You’ll get the story, if there is one, by encouraging them in an easygoing, conversational, and interested manner. If they are reluctant to talk about their daycare experiences or become sad or fearful when they do talk about them, your concerns might be genuine. If your child is consistently exhibiting any of the signs previously described or shows symptoms of child abuse or child neglect, and you are satisfied that the problem is a daycare worker, contact your local police or county sheriff at once, or contact the nearest office of the Child Protective Services Division of the Texas Department of Human Resources. Calling a daycare abuse attorney is also good.
All educators and adults who supervise children for a living know Texas law requires that if they even remotely suspect that child abuse may have occurred, they must immediately contact CPS. Incidents of suspected child abuse that may require immediate action can be reported to the CPS toll-free abuse hotline at 1-800-252-5400 any time of the day, seven days a week. If the abuse has caused an emergency, they must contact local law enforcement (911) without delay. But if an emergency response is unnecessary, the CPS online reporting system on the Web () may be used. Allegations of child abuse sent through the CPS Web site can take up to 24 hours to process and generate a response. The next step is to seek medical attention for your child quickly. Your primary doctor should know the symptoms (both physical and emotional) to look for in cases of child abuse and will conduct a thorough examination of your child to determine whether or not daycare child abuse exists fully. If you need assistance finding proper medical attention, Grossman Law Office’s daycare abuse attorneys can help you find appropriate medical or psychological help for your child. Once you’ve notified the proper authorities, sought medical attention for your child, and still have reason to believe that your child has suffered daycare abuse and has not yet contacted a civil attorney, it’s time for that appropriate step. Law enforcement and the Texas CPS take child abuse allegations very seriously. If such allegations are made, a criminal investigation will be conducted to determine the validity of the charge. With the help of a knowledgeable daycare abuse lawyer, this emotionally difficult time can be much more manageable. It’s a blessing to have an experienced daycare abuse lawyer stand with you at this critical time to ensure your and your child’s rights are fully protected. Any daycare child abuse or neglect charge must be carefully considered before initiating any formal investigation. Improper, ill-founded, or reckless allegations against those suspected of child abuse that prove false can severely damage a good worker’s reputation. The parents who leveled such allegations run a genuine risk of being the target of civil slander or liable charges in court by the accused person; once he or she is forgiven. Any investigation must begin very quietly so that everyone gets things 100 percent right and that the daycare worker who is investigated is the one who abused your child. Our Law Office’s daycare abuse attorneys can help you understand why you must carefully approach this issue and investigate very quietly.
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DAYCARE ABUSE & NEGLECT
The Differences between Child Neglect and Child Abuse“
“Duty of care” is a legal term that establishes the obligations a defendant in a personal injury lawsuit has for others. Daycare centers have a rather high duty of care. So they must prove they have made “over and above” efforts to assure the safety of the small children within whom parents have placed their trust to provide for a child’s safety. A daycare worker and the center can become the target of civil litigation through a charge of general negligence if they fail to meet their duty of care. Negligent hiring practices may violate that duty of care if it is proven that the daycare center did not perform due diligence in vetting an employee before they came to work. In cases where the negligence or abuse is ongoing, a fair argument for gross or willful negligence may be more appropriate, even if gross negligence is harder to prove in Texas personal injury cases. Another claim of negligent supervision may be brought even if a child suffers an injury due to an adult becoming distracted for even a few seconds. Unlike many other personal injury cases that only have one or only a few legal options when alleging claims of negligence, child abuse cases may involve many different types of inattentive or negligent behavior as contributing factors to your child’s abuse-related injury. Again, if just one negligence claim is substantiated against, for example, a daycare center, you may rightfully seek compensation for the damages to your child. By definition, you and the rest of your family have suffered.
Multiple Defendants Could be Involved in Your daycare Center Child Abuse Civil Action
One of the first questions that an aggrieved family often wants to be answered, “Who did this terrible thing to my child?” In the legal world, the person or entity (the defendant) responsible for an injury is called the “liable party” The specific circumstances surrounding a daycare abuse case will likely dictate who the liable parties are. There have also been several past instances of daycare abuse where the offender turns out not to be a daycare worker or teacher but rather an employee who doesn’t normally come in consistent contact with children at the daycare center: such as a janitor, bus driver, delivery person or someone else who may, in one form or another, have the opportunity to have unsupervised contact with the children who attend the daycare center, even if it’s very brief. Sometimes family members of daycare workers are implicated in daycare abuse cases. If an employee of a daycare center or worker with another company who has dealings with the center is guilty of child abuse at your daycare center, both the employee and the employer, as third parties, can be held liable for this employee’s negligent or predatory behavior. This also could include the employer of a delivery person to the daycare center who is responsible for the abuse. In many Texas civil cases, employers are viewed as legally liable for the offenses committed by their employees during their time at work, just as much as the offending employee. This term is called respondent superior. It is important to bring employees to justice in daycare child abuse cases and punishing employers for allowing this to happen. The buck stops with the owner/employer of the worker who abuses a child at daycare just as much as the actual perpetrator. In cases where one or more predators/defendants are involved in a child abuse case daycare facility, civil lawsuits may be pursued against each liable party. Because of the highly delicate nature of such cases, a careful investigation must be made for all liable parties to be properly identified and held fully accountable for the full measure of their negligent behavior. This investigation often includes an asset check on all defendants to ensure they have the financial means to pay damages once they are found guilty.
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DAYCARE ABUSE & NEGLECT
Be Prepared for a Vicious Fight When Protecting Your Child’s Rights in Court
We’ve already noted that when an employee of a daycare center is found liable for a child abuse incident, the employers and their company will also be held liable for the child abuse incident. But, determining the actual owner of a daycare center can sometimes pose several challenges. While most daycare centers are privately owned, others are owned by corporations that often have substantial legal clout. All Texas daycare centers must carry some personal liability insurance to be granted a state license. Without an experienced daycare abuse attorney to conduct an exhaustive investigation into the matter and assist you against such formidable defendants, your quest for justice on behalf of your child could end before it begins. If you did your due diligence before enrolling your child in a daycare center, you certainly asked if the center had insurance, what type, and how much. Assuming you were wise enough not to place your child in the daycare center unless the questions were answered satisfactorily. That defendant daycare center, or the company that owns it, will rely on its insurance carrier to pay their compensation damages in a liability case. So when a company or employer is involved in a personal injury claim, that company’s insurance carrier is all but certain to be involved in a daycare liability case because the carrier is the one who pays the damages. Beware that insurance companies all too often have previous experience in dealing with similar cases, not to mention civil liability cases in general. They and their attorneys (either in-house or on permanent retainer) are well-prepared (and well-armed) to aggressively defend their interests to their fullest capability. Such forceful defense, if successful, ultimately means that a great deal of money is saved by the defendants and the insurance carriers who fund their defense. So if your case ends up in court, be prepared for anything, including an assault on your character. They’ll certainly try to turn the tables and allege that someone in your family is the abuser. Emotional cases such as this bring out the worst in defendants and their lawyers. Not only is the burden of proof on you, but the burden to disprove their allegations against you, which are a part of any child abuse case, is also on you and your daycare abuse lawyer. With the help of an experienced child abuse attorney, you can receive the vital legal assistance you need against any strong defense tactics that are certain to be leveled against you by an insurance company and their lawyers who represent the defendants at an abusive daycare center.
Our Law Office Can Help You Win Legal Action for Child Daycare Abuse i
If you are convinced that daycare abuse has caused harm to your child, the Texas daycare abuse team at our Law Office can assist you in several significant ways. By seeking legal action through a personal injury lawsuit, fair compensation can be won for your child’s injury and fund treatment for this trauma, including the emotional pain your child has suffered. Such emotional disturbance and the psychological scars suffered by child abuse or neglect victims are well-documented. All of these problematic issues are taken into full account when considering the amount of fair compensation for daycare child abuse once the defendants are found guilty. In addition to pain and suffering, fair compensation damages can be sought for your family’s financial losses, such as the child’s past and future medical bills and any physical and psychological impairment caused by the abuse. And finally, punitive damages may be awarded to an aggrieved family, depending on the severity of the child abuse incident. Punitive damages are intended to make the guilty defendant in a civil lawsuit pay so much money over-and-above the actual damages that they will never repeat the child abuse or neglect that has harmed and scarred not only your child but your whole family. A wounded family wants and deserves both criminal and civil justice regarding child abuse or neglect. Those responsible for your child’s suffering must take legal responsibility for their actions so they will never commit this heinous act again. It is quite certain the actual abusive perpetrator will face criminal charges. But the center that allowed this abuser to prey on small children, even through ignorance of such offenses, must also be made to pay for their civil negligence. Whether these defendants must answer criminal charges or not, a personal injury lawsuit can be brought against these liable parties responsible for child abuse at any daycare facility. While no amount of money might seem to be fair compensation for the suffering caused to your child, the legal damages won against those liable defendants can be viewed as something like “just desserts” and bring a certain amount of closure.
By winning a civil case against those who are negligent with your child, actively abuse your little one, or hire and pay that abusive or neglectful employee, you are working to help save others from the grief and pain now thrust upon your family. If you suspect your child may suffer from physical, emotional, or sexual abuse at a daycare center, contact a Texas daycare abuse attorney at our Law Office, toll-free. We provide a free, comprehensive, and fully confidential legal consultation. We encourage you to ask every question you can think of so you’ll completely understand your child’s daycare abuse injury case and how it is best pursued. Our interest is in your child’s safety. Once we are engaged, we fully investigate every aspect of the daycare provider, its workers, all others who come in contact with the center, and the abuse. We work closely with law enforcement officials in their pursuit of criminal justice. We aggressively negotiate with all insurance companies to reach a fair settlement. They know who we are and know that if we have the strongest case, it’s better to cut their losses and settle for a reasonable amount rather than risk a trial. But if push comes to shove, we’ll just as aggressively represent you and your child in court. We want to hold these monstrous people accountable for their actions, bring them to full justice, and help end this nightmare brought about by a daycare worker who preyed on your innocent child.
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WORKPLACE INJURY / WORKERS’ COMP
Sorting out Your Full Legal Rights after a Workplace Injury at Your Job
Have you been injured on the job? First, we sincerely hope it is minor; you’ll recover quickly and be able to return to work. But if you’ve been seriously hurt, who pays for your injuries, lost time at work, or, heaven forbid, benefits owed because you’re permanently disabled or your loved one was killed on the job? How to handle your claim or civil injury case depends upon the actual details of your accident and the events leading up to it. You must know whether or not the company you work for has workers’ compensation insurance: which pays reimbursement for medical expenses, lost wages, pain and suffering, and some disability. You also need to know what to do if workers’ comp does not cover your employer. You also must understand if – in the eyes of the law – you are an employee or merely a contractor. Your ability to obtain fair compensation for your on-the-job injuries depends on the answers to these important questions in determining how to receive a reasonable damages payment. Resolving such cases can often be very complex due to the abovementioned factors and other issues that influence any job-related injury case. If that wasn’t enough, our laws’ complexity and occasional ambiguity allow employers and their insurance providers to unfairly refuse the rightful claims of thousands of injured Texas employees annually. It’s almost certain that inexperienced lawyers will falter in their attempts to secure the highest reasonable settlement in a work accident insurance claim or civil case.
Certainly, those with no legal experience representing themselves in such a serious matter are virtually certain to fail in their quest for rightful compensation. The workers’ comp attorneys at our Law Office have over 20 years of their lives invested in fairly resolving injury claims and civil cases for employees who are injured on the job. We use our expertise and skill to help you clearly understand the laws involved with such a case and all of the legal avenues open to you following your work accident-related injuries. We are just as practiced at representing surviving family members when their beloved family member has been accidentally killed on the job. This is why we believe that honesty is the best policy in sharing all the challenges you’re likely to face. It would be best if you made the best-informed judgment in your family’s interests, which is something your employer and his or her insurance company no longer care about – from the moment the mishap occurs. Employers must protect their assets! Some will attempt to hide whether or not they have workers’ comp insurance. Often, they attempt to evade liability and mislead you, the injured employee. Some might argue that you aren’t an employee and don’t owe you anything. With the help of their insurance companies and attorneys, they’ll accuse you of being the actual cause of your injury. That’s only the beginning of their mission to deny you. An experienced work accident attorney knows how to counter the tricks of your employer, his lawyers, and pushy, underhanded insurance adjusters.
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WORKPLACE INJURY / WORKERS’ COMP
Determining Employer Workers’ Compensation Status is the First Big Fork in the Road to Recovery.
Thanks to our lawmakers (and the insanely affluent insurance lobby), understanding today’s workers’ compensation laws is a thorny challenge. The state of Texas requires no employer to purchase workers’ comp insurance. Right now, roughly one in two do subscribe to the program. So, workers’ comp injury cases are divided into two distinct types that require completely different starting points (and strategies) to resolve. Employers who carry worker’s comp are referred to as “subscribers.” Those who don’t are “non-subscribers.” To know how to proceed with your claim, you must first determine whether or not your employer is one or the other.
Workers’ comp benefits are paid out of a “pool” of funds. This pool is stocked by private insurance carriers that participate in the program. The program also protects subscriber-employers from lawsuits and disregards employees’ legal rights to be fairly compensated when the employer is truly negligent because it legally limits, or “caps,” the monetary benefits an injured employee can receive. If your employer subscribes to workers’ comp, it compensates injured employees. It’s like “no-fault” auto insurance for employers because when they’re covered by workers’ comp injured, employees are automatically reimbursed: no matter how the accident occurred or whose fault it was. Often, the amount you receive doesn’t come close to fully covering the expenses of an on-the-job injury if it is severe.
On the other hand, to receive financial restitution from a non-subscriber to workers’ comp, an injury victim must file an insurance claim and, if necessary, a lawsuit in civil court. Otherwise, they receive nothing. Fortunately, for the injured worker, there is a small victory. For the legislature to “encourage” Texas employers to subscribe to workers’ comp, they lowered the standards of proof for negligence in case of a civil case or claim against a non-subscriber. So it’s not as difficult to affix true liability against a non-subscribing employer for on-the-job accidents in court and win fair compensation. Since workers’ comp is cheaper than commercial employer liability insurance, one would assume all companies would be smart and purchase workers’ comp instead. Not every employer treats his business like a smart homeowner treats their home: the first check goes to the mortgage company, and the second one goes to that (cheaper) insurance. So many employers still choose “live on the edge” and risk being a non-subscriber (or have no insurance at all). Then, when the odds catch up, they run for cover to avoid a lawsuit.
A favorite tactic of such people is to fake having workers’ comp once an employee is seriously injured. These employers may try to pay you benefits quickly that you would typically receive from workers’ comp and ask you to sign what they may represent as a “standard release” to further their deception and get off the hook. It’s a trick, so don’t fall for it: even if the document you sign “looks” official. This is one of many tricks that awaits you without the benefit of an experienced workers’ comp attorney to get to the bottom of your company’s workers’ comp status, so you know what legal recourse is available to you. Once we have answered this vital question, we can move forward together to secure your just injury compensation.
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WORKPLACE INJURY / WORKERS’ COMP
The Single Exception That Allows Injured Employees to Sue Workers’ Comp Subscribers
Did You Know? Our work injury attorneys have won thousands of cases. Call us today to discuss your case. We’ve told you that employers get far more than quick, no-fault, and “capped” liability protection when they subscribe to workers’ comp insurance. They are also virtually bulletproof when it comes to civil lawsuits. They cannot be sued unless the employer has committed gross negligence that caused a wrongful workplace death. In one case, our attorneys were hired by the loved ones of a construction worker who died after a fall from a crane. The employer had ordered the worker to work atop the rig without the mandatory safety harness. When the victim plummeted to his death, his employer rushed to a construction supply store, purchased a safety harness, attached it to the dead man, and then reported the accident to the authorities. Our investigators uncovered this willful deception by interviewing the co-workers and hit him with a costly (and successful) gross negligence and wrongful death lawsuit. So there’s truth to the saying that it’s not the act that gets you in trouble; it’s the cover-up. However, if ordinary negligence applies to wrongful death, subscribing employers are off-the-hook. The facts of the case must be overwhelming to prove gross negligence. So whichever contributing insurance company is responsible for negotiating a settlement; again, with benefit caps, the odds are improbable that the victim, or the victim’s survivors if a death has occurred, will receive the equitable compensation to which they are entitled if they go it alone. In a perfect world, insurance providers would be concerned with tending to the legitimate needs of injured parties. Victims would receive fair compensation for all medical bills, lost salary, pain, and suffering. But this is the real world and far from fair or perfect: despite what some of these insurance companies who participate in workers’ comp try to say in the charitable tone of their advertising and public relations campaigns. Insurance companies are in business to generate profits, not help people. Those who underwrite the workers’ comp pool are no exception. Insurance companies try to avoid fairly compensating injured employees every day. Insurers participating in the state’s workers’ comp coverage pool are just doing it – while the legislature looks the other way.
There’s another very effective avenue to receiving fair workplace injury compensation. It calls for the injured employee to file a claim or civil action against someone other than the subscribing employer, commonly known as a third-party lawsuit: In many cases, someone besides the employer may have done something negligent to cause a workplace injury. If a faulty piece of machinery caused a serious mishap, the manufacturer might be held accountable through a defective product lawsuit. If the property owner did not provide safe working conditions, he or she could be held accountable. If another employee, a visiting contractor, or one of the contractor’s employees negligently caused the injury, they could be held accountable. In such a case, you can sue the responsible party or parties but not your subscribing employer. Experience and the ability to properly investigate the accident scene and the roles these third parties played in the calamity are required to properly identify the parties responsible and make them pay for the injuries they caused. A skillful work accident attorney can devise a plan of attack for workplace injury cases that offer the best opportunity to secure compensation in a complex Texas work accident claim like this.
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WORKPLACE INJURY / WORKERS’ COMP
Receiving Compensation from Liable Non-Subscribers is More Straightforward but Still Quite Hard and Contentious
Unsurprisingly, many employers neglect to purchase workers’ comp or any other form of insurance. Suppose you are to receive the compensation you deserve from non-subscribing employers. In that case, you certainly need the assistance of a skilled Texas work accident attorney to file a lawsuit and see it through to receive the fair compensation you deserve due to their negligence. In addition to lowering standards of proof against non-subscribers in the wake of a serious workplace accident, the legislature allows the seriously injured victim to receive much greater damage than workers’ comp payouts. It offers more damage types than are available through workers’ comp. They wanted all businesses to subscribe to the program, didn’t they? With all these exceptions and loopholes, you can guess that workplace civil action law are extremely intricate. So to succeed, you will need a crafty accident lawyer to assist you through every complexity of this challenging legal process.
Most non-subscriber compensation journeys begin when the victim, also known as the plaintiff, informs the employer of his or her intent to recover compensation for his or her injury and possibly a dollar amount that the victim expects as fair reimbursement. The employer can agree: but good luck with that. This employer has some insurance or surety bond to cover these matters. If they have insurance, they hand it over to their carrier. In this case, you (and your attorney, if you’re smart) try to negotiate a settlement, assuming that the insurance company doesn’t automatically dispute your allegations outright. If negotiations progress in good faith, usually because your experienced work accident lawyer makes it clear that you have a very strong case. Then the matter is settled, you are fairly compensated, and everyone returns to their regular lives. The defense often contests work-related injury cases, and the plaintiff must file a lawsuit to win the compensation he or she deserves. As the injured party, you – the plaintiff – hold the burden of proving that the employer’s negligence caused the injury that left you with those high medical bills, lost salary, pain, and suffering. Aren’t you glad that, in this case, you only have to prove simple negligence? Because with experienced legal counsel, that task is much easier than trying to adhere to higher standards of proof.
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WORKPLACE INJURY / WORKERS’ COMP
Defendants Will Certainly Charge you as Being the Sole Proximate Cause of the Accident.
Your workers’ comp non-subscribing employer is certainly not likely to suddenly change his or her nature and agree to pay you for the harm you’ve suffered due to that negligence. Our experience in these matters has taught us that most non-subscribers insurance companies (and their lawyers if it comes down to a trial) begin their defense with a couple of relatively predictable strategies to avoid paying injured employees the restitution they deserve. We’ve mentioned the sole proximate cause defense. To make an effective case, your opponents will add insult to your injuries and soil your reputation by charging you were a negligent employee and causing your injuries. They try to hold you alone responsible for them. This is the first step of their besmirchment campaign. Your character comes into question: ‘When did you stop beating your wife? Did we see you selling drugs on the job site?’ Questions begin popping up. They have no shame (or aversion) to painting the wrong picture of you as they desperately try to wiggle out of paying rightful damages. So, in addition to your burden of proof, you and your attorney have an equally-important burden of dis-proof. Insurance defense lawyers know how close to the line truth and lie they can go without stepping over it, yet still make their sinister points against you. Your employer may have been too cheap to buy workers’ comp coverage. But you can be sure they will think nothing of paying tens of thousands of dollars to defend themselves. You need your cunning work accident attorney to place the spotlight back where it belongs, squarely on the negligent employer.
The Next Defense: Questioning the Existence of an Employer-Employee Relationship
The sole proximate cause defense has been thwarted. But there’s another defense trick awaiting you. Many clever employers begin avoiding liability even before accidents occur by trying to distance themselves from you as an employee and their responsibility to compensate you fairly. Some even start building that paper trail to prove their argument from the first day you show up for work. Texas employers are not liable for what happens to contractors vis-à-vis job site injury liability. So many companies will claim to hire their employees as contractors. By calling you a contractor, your employer believes it’s possible to deny that an employer-employee relationship existed between you and the company. Then they will tell you that you don’t have a legal claim to compensation for your injury-related damages. Their logic is simple: why should they be responsible for an injury to someone who was technically never their employee? While many companies try to claim they hire their employees as contractors or as temp workers through a third party, the business owner knows an actual employer-employee relationship exists in many of these cases. An injured worker can still obtain compensation. So don’t be discouraged by this ploy. Even though your employer initially claims you are a contractor, you are likely still considered an employee in the eyes of the law; and entitled to recover financial compensation for injuries suffered on the job. A skillful and well-seasoned workplace employee injury attorney knows how to prove the employer-employee relationship by meeting at least one of the following standards and often proves more than two:
Social security and withholding taxes have been deducted from your paycheck by your employer.
Your employer supplied the essential equipment for the job.
Your employer has regularly managed, overseen, or inspected your work.
A specific work schedule has been set for the job by your employer. You are not free to come and go from the workplace as you, please.
Your employer requires you to complete a task or sign a document that limits your rights while working for the employer. The most common examples are taking a drug test or signing a document that states you comply with an employee handbook.
You have been employed for an undetermined period, not just for a single job.
A salary or an hourly wage pays you not on a job-by-job basis.
In cases where a worker is borrowed from another company, or a third-party agency, the rules for determining the working relationship are related, but there can be some crucial differences. These conditions may include the following:
If the borrowing employer can hire or fire a borrowed worker at any time, the worker is an employee. Otherwise, the worker is a
contractor.
Most of the time, if the borrowing employer is allowed to pick a particular worker, the worker is an employee.
If the agency that provides the worker is allowed to send any worker they choose, the worker is a contractor.
If the worker must provide them, that person is a contractor.
If the employer offers them, the worker is an employee.
The worker is a contractor if the employment agency can substitute the borrowed worker for another.
If the lending agency cannot, then the worker is an employee.
If the worker is borrowed indefinitely, then the worker is an employee.
If the worker is borrowed for a specific project with a completion date and no further, the worker is a contractor.
If a worker is being borrowed or “leased” because of a unique or hard-to-find skill, then the worker is a contractor.
On the other hand, if an employer borrows a worker to fill a position that just about anyone can supply, then the worker is an employee.
If the borrowing employer agrees to pay the worker’s social security and income tax, the worker is an employee.
The worker is a contractor if the borrowing employer does not accept this responsibility.
Our Law Office conducts a thorough investigation to demonstrate at least one of these standards and prove an employer-employee relationship existed between you. We will depose co-workers, review contracts and examine pay stubs to establish that you were an employee when you suffered an on-the-job injury. A couple of other important things: if you were hired by an employment agency to work at an “employer’s” company and suffered a workplace-related injury or accidental death, your attorney must determine if the employment agency has workers’ comp. If so, you would file a workers’ comp claim against the agency, which would make the company where you performed the work a third-party contributor to the accident and subject to the full extent of civil law. Also, suppose your employer loaned you to another company where the accident occurred. In that case, the issue of a workers’ comp subscription with your employer comes to mind, and the company where you suffered your injury will likely be treated as a third-party defendant in any civil claim or suit. Or maybe they’re both non-subscribers, so there are no civil restrictions.This brings another important point to mind. Workers’ comp claims are less than adequate when major injuries include wrongful death. So the traditional way for an employee to recover fair damage compensation is to file a workers’ comp claim against the employer of record (assuming that the employer subscribes) and then supplement the claim with the appropriate number of third-party claims or lawsuits. Finally, sometimes employers will deduct that Social security and withholding taxes and then put the money in their pocket, then try to claim an employer/employee relationship did not exist. They change their tune if we ask if the IRS will back them up. Then they change their tune quickly. They know that we’ll know that truth in less than five minutes. Some people: and another benefit delivered by an experienced workplace injury lawyer.
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WORKPLACE INJURY / WORKERS’ COMP
Your Opponents Fight Very Hard in a Workplace Accident Liability Case
In all non-subscriber and third-party workplace injury claims, defendants usually have large insurance companies and many attorneys to oppose them. They have sneaky, underhanded adjusters to thwart your claims and work behind the scenes to deny you. They also have attorneys either on staff or on permanent retainer. They are very skilled at defending insurance companies from people who try to sue them. Insurance companies are in the business of collecting high premiums and then avoiding paying claims. They are aggressive and intimidating from the start. But they don’t scare an experienced local work accident attorney like those with our Law Office. We’ve seen their tricks and know how to cut them down to size. But if your employer is “self-insured” or uninsured, they’ll fight just as hard to avoid paying for your injuries. These people are a lot more dangerous to your legal rights and maybe even pose a direct threat to you and your family’s physical well-being. They’re a different animal altogether. Insurance companies have at least some semblance of a code of ethics and oversight. None of these concern self-insured or uninsured employers. So with them, the gloves come off. They resort to anything that will work for them once an injured employee takes legal action to recover damages. Some of their tricks are shameful at best. Others are utterly illegal.
If you seek a settlement from an officer of the self-insured company or maybe even directly from your employer if it is a small company. In either event, the salary of whomever you deal with is likely tied directly to company profits. Any damage paid to you for an injury comes directly from company coffers. So by compensating you, your employer takes money out of his pocket. We are rarely surprised when a sneaky, self-insured company officer uses any means to deny your claim to protect his company’s (and his personal) assets. Remember that construction accident guy who bought that safety harness? We see that in uninsured employers rather often. Self-insured companies can deliberately dispose of evidence and bribe or intimidate witnesses. They sometimes resort to physical threats against you or your family. This is why every time we represent a client against a self-insured company, we file motions in court that prevents anyone with the company from behaving improperly against our clients. Sometimes these motions include a clear demand that they do not attempt to communicate with our clients in any way without one of our attorneys present.
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WORKPLACE INJURY / WORKERS’ COMP
OSHA Is of Little Use in an Injury Liability Claim or Legal Case
You are probably familiar with this government organization, the Occupational Safety & Health Administration (OSHA). This federal agency maintains minimum standards of safety for all American employers. You might think OSHA will help you attain compensation. Nothing could be further from the truth. OSHA does not file lawsuits on behalf of injured employees. All it does is oversee the work environment in the U.S., crunch numbers and assess fines. And for the past 20 years, OSHA regulations and the fines levied for employer non-compliance have lost most of their teeth. OSHA fines were set long ago and no longer carry the proper financial motivation to convince safety violators to comply with these government standards. Many of these fine amounts were established over 30 years ago. Though they might have encouraged conformity back then, inflation and other economic factors make many OSHA fines little more than a slap on the wrist. A $10,000 fine doesn’t strike fear in the hearts of employers as it did during the Reagan Administration.
Additionally, over the years, OSHA has become more restricted in its actions and investigations due to smaller staff sizes and operational budgets. Today, OSHA has been all but emasculated regarding preventing on-the-job injuries. Furthermore, OSHA cannot make any direct effort to help injured workers secure compensation for the damages inflicted upon them. Only after an accident will OSHA investigate negligence, and their reports are designed to stop future problems, not correct past mistakes or oversights. And though that data might be considered general evidence at a trial, OSHA is an example of closing the barn door long after the cow escapes: when it comes to aiding your compensation quest.
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WORKPLACE INJURY / WORKERS’ COMP
The Most Important Thing You Need to Do Right Now, and Why:
This is the first thing you must understand after a serious work injury. Before you speak with an insurance company, accept even a single dollar of payment or compensation from your employer, sign anything, or attempt to file a lawsuit on your own, you must contact a competent lawyer. All of your opponents want you to accept a substandard settlement so that they can save their own money. Don’t be taken advantage of. Then, you must realize the critical importance of acting swiftly. In work accident cases, the evidence begins to fade immediately following the accident. The physical details of the accident scene itself can change overnight, especially if there is something to hide. And witnesses change their stories or forget what they saw because the mind is mysterious. Sometimes, they’ve even been paid to forget or to “take a nice long vacation.” If you wait too long to hire an attorney and put him to work investigating the trail of evidence, then you are doing untold damage to your ability to secure the fair restitution you deserve.
An experienced work accident attorney with our Law Office helps injured Texas employees deal with their challenging work-injury cases. We have spent over 20 years accumulating the expertise required to help injured workers like you receive the compensation they deserve for their medical bills, lost wages, pain, suffering, and disability, as well as family survivors of wrongful death accident victims in the workplace. You have the opportunity to put our experience to work for you. We can answer your questions if you want to know your rights, how to proceed with your claim, and how much compensation you can reasonably expect to secure. Call our Law Office now at (toll-free) for a free consultation and find out how we can help you. You’ve been hurt once. Don’t let those who negligently caused you work accident injuries continue victimizing you and your family.
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