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Company negligence cost my index finger
October 2014

I work full time as a diesel mechanic. I have a part time job at a landscaping business for extra income. I also do side job mechanical work for extra cash.

Two months ago, I was working at the landscaping business when I had my right index finger (dominant hand) smashed off on a log splitter. I was taken to the ER and there was no doctor within a reasonable distance willing to try to reattach what they deemed had too much tissue damage.

I will give you a little background on this landscaping business. I knew an acquaintance that was a foreman and knew I had a Commercial Driver’s License and asked me to drive the trucks for the business. They were short-handed and I could use the extra income. This day they were short-handed on the log splitting labor (and foreman) due to bad weather (rain). The Supervisor was also absent. I had used the log splitter once before and my co-worker was well experienced. When I got my hand caught trying to catch the sliding log I yelled for my co-worker to stop. He tried to pull the emergency stop switch but it did not stop. He even bent the handle.

I was pretty much in shock and disbelief, but the ER gave me a sedative to calm down and pain medication. I explained to the workman’s compensation case worker at the hospital and later at home that I thought the emergency shut off switch worked; but maybe my co-worker didn’t pull it before a point where the shut off mechanism cannot be engaged. The co-worker thought it always worked whenever you pulled it. This is as much as I know about the log splitter, I was told to split wood that day.

First, I talked to the Workers’ Compensation case worker for the company who informed me about my medical treatment coverage as well as my income. I know I will be compensated for medical treatment. Workers’ Compensation insurance was going to pay the salary at 124% (part-time average) at first until I can go to work. I cannot drive a truck or handle any equipment while on medication and in pain. I also have to keep in mind I cannot drive and someone else in inconvenienced. She then said if I miss work to go to doctor appointments I would get my wages. I of course made appointments if I could on these 2 days. My full-time job pays much better than the landscape company.

I was fortunate that my full-time job allows me to basically do office work. I can advise customers on their mechanical problem and basically create more business. I hope to make this a permanent job, even when I can work full-time. But, I cannot always get the doctor appointments on other days. While on medication, I cannot drive, and until my hand improves I cannot do mechanical work. The doctor says his goal is 80% improvement in a year. He also informed me that there will be future medical procedures like skin grafts, nerve blocks, and minor surgery. I cannot do any side work to make up the loss.

Two weeks later, the case worker informed me that they were not covering my income and the owner was paying me out of the kindness of his heart (instead of the previously discussed 124%). In September, a month since the accident, the landscaping owner advised me he will pay one more month then I will not get any income for days I miss to go to the doctor. He told me he cannot give me money I did not earn. I talked to the case worker who informed me to take time off my full-time job for doctor appointments. As far as work goes they have nothing for me to do but sit around the office. I may get a little paperwork for about 10 minutes and the rest of the day wait until they close.
Two weeks ago my co-worker approached me and informed me that earlier that week the log splitter was repaired before the Workers’ Compensation case worker arrived to take photos. Apparently, prior to my accident, there was maintenance done on this machine, the lines were not attached correctly thus, disengaging the emergency shut-off mechanism. The owner told him to correct the lines before the case worker arrived. He and the foreman repaired the lines. He is very willing to give this statement. And, if there is any doubt, just change the two lines he is talking about and the fail safe mechanism is not working. I know what lines he is talking about and I have photos of the repaired machine. The next paycheck did not have the 2 missed days for doctor appointments; this is 6 weeks since the accident.

That day I realized several things. Number one being this should not have happened. I should not be in a position where I am impaired because of someone’s negligence. My loss of income is greatly affected most of all. I am not even making half my income. I lost my side work that I depend on for extra cash. I have chronic pain and my career is in jeopardy. I do not know if I will have future medical problems with this hand. Every day I discover new things I cannot do because of this injury.

Most of all it is affecting my time with my son. I have to find someone for transportation when I have my son on the weekends (he lives 1 ½ hours away). He is 10 years old and we have to stick with more mundane indoor activities. I am restricted to one hand basically and we have had to cancel our plans, like canoeing, camping, baseball, and road trips without someone taking time off to drive. The medication makes me drowsy and nauseous. Some days the pain can be unbearable. The holidays are approaching and my income will affect my plans with my son.

So, when the landscaping business owner smiles and says I have to earn my money, I have to be honest. I have earned every cent I have. He chose to cover up the company’s mistake instead of coming forward like an honest man and tell me how he can help make up for this. I have no qualms anymore about moral and ethical reasoning in pursuing as much recovery financially, as possible.

The Workers’ Compensation case worker and the landscaping company owner are ready to dismiss my problem- “we have done all we can do”. I do not want some standard settlement for one finger. I do not know how to pursue legal action against the company and the owner, and not just Workers’ Compensation Insurance. Where do I find a lawyer that would love to go after the person who knows HIS mistake caused my permanent impairment?

Thank-you for your time
you don't have another option.
your only remedy for a work injury is standard workers compensation insurance benefits; there is no negligence liability to the employer.
if there was/is a manufacturing or product defect by the log splitter manufacturer you may file a third party product liability law suit.
depending on your state laws there may be some additional workers compensation benefits if there was a safety violation by the employer during the use of the equipment.

you would have to retain a civil atty for a product liability legal action and the workers comp carrier has the right to recover their costs out of any recovery you may get.

employers are protected by workers comp insurance and ordinary "mistakes" on both employee and employers are covered by workers comp benefits.
you can find product liability attys on any legal website: lawyers.com; AVVO.com or use a search site like yahoo, duckduckgo, google bing etc.
Reminder :
........Each state has their own comp system; POST YOUR STATE to get accurate information. Use the search feature to find information from similar questions.

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