This is a review of a workers comp lawsuit filed by an injured employee who was entitled to receive partial wage reimbursement while recovering. The employee disagreed with the reason upon which the insurance carrier based her partial wage reimbursement.
The employee believed her partial wage reimbursement should be based on her salary plus a housing allowance paid on her behalf by her employer. Taken together those amounts would substantially increase her partial wage payout during her medical leave.
The workers compensation insurance carrier disagreed with the employee’s request. From that disagreement arose this workers comp lawsuit.
Statement of Facts…
Jacqueline Tanga began her employment with Quantity Services on January 2nd, 2009. Quantity Services was a nationwide food service company with offices in all 50 states. Their primary business was based upon commercial catering and the bulk of their business was catering for special events. Quantity employed 3,000 employees. Of those employees, many were used as food servers during the special events.
Because some large events could not be supported by Quantity’s local staff, Quantity Services often had their employees transfer temporarily from out of town to the site of the special event. When transferred, the out-of-town employees would be paid an additional amount of money as a housing allowance.
Because the preparation for some of the events sometimes took 4 to 5 months, the out-of-town employees mostly rented hotel rooms, sometimes sleeping two to a room to save some of their housing allowance.
Transfers were on a voluntary basis only. Because some employees enjoyed traveling to various parts of the country, Quantity Services had little difficulty recruiting volunteer employees. Tanga lived and worked for Quantity Services in Hoboken, New Jersey. It was now January of 2010 and the Saratoga Springs racing season in upstate New York was beginning preparations for its upcoming racing season.
The racing officials and Saratoga Springs Chamber of Commerce traditionally presented several special dinner parties and extravagant catered affairs for various officials, celebrities, and the public. When Quantity Services announced to their employees the next special event was going to be in Saratoga Springs and an extra 75 employees would be needed to staff the event, Tanga volunteered.
Once relocated in Saratoga Springs, Tanga and her fellow employees went to work. They normally worked from 7 in the morning until 7 or 8 in the evening. Inasmuch as many of the transferred employees, like Tanga, were hourly employees, they received their hourly wages and time-and-a-half for any hours over 40 each week.
Tanga had been living and working in Saratoga Springs for almost two months. One day, while being moved, a food-heating lamp exploded. As it did chards of glass were expelled in all directions within a 10 foot radius.
Although some other employees located nearby were hit by some of the chards of glass, Tanga suffered the most serious injuries. When the chards of glass were expelled, several of them were projected directly into Tanga’s right arm. The glass cut her arm from her elbow to the shoulder area, and the heat from the glass burned her right hand as well as part of her right arm. Several employees immediately came to Tanga’s aid. Tanga was in great pain and discomfort and was having difficulty breathing.
One of the managers heard the cries of the injured employees and responded almost immediately. He called 911, and within minutes Fire and Rescue Units were on the scene. They treated all of the injured employees.
Only Tanga was injured seriously enough to require transfer by ambulance to the local hospital’s emergency room. Upon her arrival, she was treated for second degree burns to her right hand and parts of her right arm. She remained in the hospital for two days for treatment and observation.
The treating physician told Tanga she was not to use her right hand for at least 90 days. Tanga’s hand was bandaged and protected by a poly fabric shield. Quantity Services paid Tanga’s emergency room and hospital bill. They also arranged for another employee to fly with Tanga back to New Jersey.
Several days after returning home, Tanga filed a workers compensation claim with Quantity Service’s workers comp insurance carrier. At the time Tanga had every reason to believe her workers compensation claim would be administered properly, fairly, and expeditiously. She did not contemplate having to file a workers comp lawsuit.
After filing her claim, Tanga was sent to one of the dermatologists on the employer’s approved list of treating physicians. After assessing Tanga’s burns and the healing progression, the dermatologist suggested to the workers compensation insurance carrier Tanga be sent to an approved plastic surgeon. The dermatologist made it clear to the insurance carrier and Tanga’s employer Tanga could not return to her work duties for a minimum of 90 days.
Tanga next consulted with the company approved plastic surgeon. After assessing Tanga’s injuries, the plastic surgeon made it clear Tanga would require several skin grafts to her right hand. The plastic surgeon agreed with the dermatologist’s diagnosis and prognosis for Tanga’s recovery. The plastic surgeon confirmed Tanga would be unable to return to her work duties for a period of at least 90 days at which time she would be reassessed.
Tanga was told her partial salary reimbursement would equal 66% of her normal wages.
The workers compensation insurance carrier informed Tanga her partial wage allowance was based solely on her hourly wages and did not include the additional amount of money she had been receiving for her housing allowance in Saratoga Springs.
Tanga was adamant. She told the carrier and her employer she should not be unfairly deprived of the additional monies. Tanga said her injuries were not her fault and “but for” the employer’s hot lamps exploding she would still be in Saratoga Springs earning her hourly wages and receiving the additional housing income she desperately needed.
The insurance carrier continued to base their partial wage reimbursement only on Tanga’s wages, and not on any amount other than her hourly wages. Tanga refused to accept their decision and retained a workers compensation attorney.
The attorney immediately filed a workers comp lawsuit. The attorney also filed a separate product liability case against the manufacturer of the heating lamp.
The Workers Comp Lawsuit…
Because of the court’s overloaded docket Tanga’s lawsuit against the workers compensation insurance carrier didn’t reach trial until August of 2011.
Tanga testified her understanding of the housing allowance was that it was additional money for the work she performed as a server at the special events. She said she traveled from Hoboken to Saratoga Springs to make more money. She knew she would make more money in overtime work and would also make even more money from the housing allowance she could save while living with several other female employees in one hotel room.
Quantity Service’s attorneys cross-examined Tanga. They previously subpoenaed a copy of her recently filed federal tax return. They presented it to her and asked her to point out where on the form she declared any amount of money for the overtime work she was paid during the previous tax year. They also asked her to point out where in the form she listed her income from the housing allowance she received before being injured… Tanga couldn’t do either.
Minutes later, after an impromptu meeting, Tanga’s attorney Non-Suited their workers comp lawsuit, meaning they dismissed their own case.
Workers compensation partial wage reimbursement is based solely on wages and cannot be based upon any other form of allowance unless specifically approved by the insurance carrier.
If an employee is injured on the job by an independent means, the employee may be entitled to partial wage reimbursement and additional amounts secured from a product liability action against a third party.
*This case example is for educational purposes only. It is based on actual events although names have been changed to protect those involved. Any resemblance to real persons or entities is purely coincidental.
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