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Proving Causation of Work-Related Cancers

Cancer affects much more than just a patient’s physical health. It also can have profound consequences for the sufferer’s financial wellbeing. One hopes that cancer victims always have the benefit of thorough insurance coverage, but that isn’t always the case. When cancer can be traced to a cause that was work-related, a patient can sometimes seek benefits under the workers’ compensation insurance policy of the employer responsible. For cancer to be covered by an employer’s workers’ compensation insurance the patient must be ready to prove that the disease arose “out of or in the course of employment.” For most types of injury the link between an injury and employment is established early in the process, usually at the first visit to a doctor. But unlike a broken arm suffered at a work site, cancer can be slow to develop and its cause may be difficult to trace. There are three threshold matters that the patient must establish (or be prepared to establish) to ensure that coverage will not be denied:
  1. Exposure to a carcinogen at work. Proving exposure to a carcinogenic material at work can be easier in some situations than in others. If the patient worked at a chemical plant and was routinely exposed to substances that are well known to cause cancer, the case will be relatively easy to build. But if the patient’s exposure was in an isolated event, where the presence of carcinogens wasn’t known, proving the link may be more difficult. The passage of time can complicate proof as well.
  2. A causal relationship between the carcinogen and the patient’s specific cancer type. The patient’s doctor can help draw a connection between the work-related exposure to a carcinogen and the patient’s cancer. If a dispute arises with the workers’ compensation insurance provider, additional expert testimony and other scientific evidence might be required to prove causation.
  3. No intervening cause. Although a patient doesn’t need to prove that his or her cancer didn’t come from a source other than work, the insurer will almost certainly argue that it might have. This has been the insurer’s argument in cases involving secondhand smoke exposure at casinos. Because casino workers can be exposed to cigarette smoke other than at work, insurers have successfully denied coverage for their lung cancers.
Another potential problem for slow-developing cancers can be employers who have since gone out of business. Patients in this situation shouldn’t entirely give up hope. Even though the business may no longer exist under its old name, it may still exist under another, been merged with another business, or been bought out. A crucial question will be whether the current legal entity that owns the business has responsibility for lingering obligations to former employees. Nevada provides a special benefit for firefighters who contract cancer, even after retirement. NRS 617.453 can simplify the process of seeking benefits for firefighters who are exposed to carcinogens during their careers. The law provides a specific list of carcinogens and their known related cancer types. Provided the firefighter can show exposure to a carcinogen that the statutory list links to the firefighter’s cancer, there will be a presumption that the cancer is work-related. For over 45 years the law firm of Greenman Goldberg Raby Martinez has served clients with challenging workers’ compensation cases. If you think your cancer may be work-related but you aren’t sure how to go about making a claim against your employer, please reach out to us today for a free attorney consultation. Call us at 702-388-4476 or send us a request through our site.

Injury Liability in the Gig Economy

Injury Liability in the Gig Economy
The rise of the gig economy has changed the nature of work for many people. Thanks to websites that connect freelancers and clients, doing odd jobs can be a consistent source of income or even become a full-time career. A gig might involve walking someone’s dog, helping to move a piece of furniture, or doing some yard work. Like any other physical work, these kinds of tasks involve an element of injury risk. This risk raises important legal questions for people who work in the gig economy, and the people who hire them.

Workers in the gig economy are independent contractors

Someone who does odd jobs on a freelance basis is most likely an independent contractor. This means that the client who hires them is not responsible to them as an employer. In an employer-employee relationship, the employer is responsible for providing the employee with workers’ compensation insurance coverage, among other things. Independent contractors often don’t get these protections. For workers’ compensation purposes, Nevada law excludes people from the definition of “employee” if their work “is both casual and not in the course of the trade . . . of his or her employer.” NRS 616A.110(1). The law also excludes people who perform household domestic services, NRS 616A.110(4), which has been interpreted to include contractors like insect exterminators. See Seput v. Lacayo, 122 Nev. 499 (2006). Freelancers should bear in mind that they are independent contractors even if they get work through a facilitating website like TaskRabbit.com. Such websites require users to agree to terms of service that invariably provide that freelancers who use the sites are independent contractors, not employees of the companies running the sites. Therefore the website owners aren’t obligated to provide insurance coverage to freelancers, either. Bear in mind that this discussion is about odd-jobs completed for non-business clients. Businesses have different obligations toward those they hire, even for short-term work. The Nevada Division of Industrial Relations provides a useful reference for independent contractors who work for businesses.

Personal liability of freelancers and their clients

For a freelancer who is injured doing a job, the only recourse may be to sue the person who hired them, or another person who created the conditions that led to the injury. Freelancers should bear in mind that they also can face liability for damaging a client’s property or hurting clients themselves. For most types of personal injury, the question of liability will rest on whether the responsible party was negligent, and whether the injured person’s negligence contributed to the injury. Here are a couple examples. Example 1: Joe the Dog Walker
Joe works as a freelance dog walker to earn supplemental income, advertising his services on Craigslist. One day Joe accepts a job walking a neighborhood pit bull named Gus. Although Gus is ordinarily friendly and mild, Joe discovers too late that he becomes aggressive around small dogs. On their first walk together they encounter another pedestrian walking a Pomeranian. Joe doesn’t avoid the encounter and Gus ends up biting the Pomeranian, and Joe gets bitten trying to intervene. Here the owner of the Pomeranian may sue Joe as well as Gus’s owner. Joe might sue Gus’s owner as well, for failing to warn him about Gus’s aggressive tendencies.
Example 2: Mary the Mover
Mary takes odd jobs through TaskRabbit as a furniture mover. Relying on her physical fitness, she takes no special precautions to protect her back or joints. While moving a heavy sofa bed for an individual client she suffers a herniated disk that makes it impossible for her to keep going to her day job. Mary sues the client to recover from the client’s homeowner policy, but she can expect the insurance company to use her failure to use a back brace as a significant contributing factor in her injury.
Perhaps the overarching lesson in these two fact patterns is that freelancers need to take steps to protect themselves. One way to do that might be through the use of contracts that limit the freelancer’s liability or give the client specific obligations. For example, Joe the dog walker might ask each client to sign a simple document that puts the client on the hook for any injuries the dog causes.

Freelancers who are injured on the job need to consult with an attorney

Generally speaking, jobs found in the gig economy don’t pay well enough to compensate freelancers for serious injuries. In any personal injury situation it’s important to talk to an attorney to preserve every potential recourse. The personal injury lawyers at GGRM are happy to help freelancers in the Las Vegas area think through their legal options. For a free consultation call us today at 702-388-4476, or send us a request through our site.