Construction accident: workers’ comp or third party claim?

In 2018, OSHA reported one of every five fatalities in the private industry was in construction. The top reasons for these 591 construction workers’ deaths: the “Fatal Four.” Falls, being struck by an object, electrocution, and caught-in between led the pack in construction deaths.  

Statistics for construction accidents

The Fatal Four accounted for over 50% of the construction deaths. Falls led the pack with 33.5% or 338 deaths. Being struck by an object came in second with almost ⅓ the number of falls, 112 total or 11.1%. Coming in third was electrocution with 86 deaths or 8.5%. The last of the four deadly accidents: caught-in/between holding 55 or 5.5% of deaths.

According to OSHA, these are the most frequently violated standards of 2019. Note: three of the top six are construction citations.

1. Fall protection, construction
2. Hazard communication standard, general industry
3. Scaffolding, general requirements, construction
4. Control of hazardous energy, general industry
5. Respiratory protection, general industry
6. Ladders, construction

Common reasons for construction accidents

Understanding why construction accidents occur help prevent future injury. While it does not negate what has already happened, it serves both employers and workers to understand the risks in certain situations. Below are commonly cited reasons for injury or death:

• Hazards created from site debris stored improperly or not stored at all
• Falling objects from elevated surfaces and lack of protection for workers on the ground
• Tripping hazards causing slips, trips, and falls
• Equipment with insufficient maintenance or missing guards on tools/equipment
• Lack of training on tools/equipment
• Fires/explosions/compressed gas accidents/electrical or welding accidents
• Hypothermia, frostbite, heat exhaustion or heat stroke, heart attacks, spine injuries or nerve damage
• Falls from heights, collapsed or unsafe structures, faulty scaffolding, crane, harness, or hoist accidents
• Lack of PPE (personal protective equipment) or proper training
• Dangerous conditions or exposure to toxic substances or environment

Construction worker injuries

Although not a complete list, the following are common construction worker injuries.

• Amputation
• Broken bones/fractures
• Burns from fires/explosions/electrical shock
• Loss of vision/hearing
• Eye injury
• Paralysis
• Spinal cord injuries
• Repetitive motion injuries such in shoulders, knees, ankles
• Concussion/traumatic brain injury
• Respiratory issues
• Cancers due to toxic exposure
• Death

Workers’ compensation claim

When a worker sustains an injury at or because of a job, they must report it to their employer. At that point, the employer contacts their workers’ compensation insurance company, which provides the employee with lost wages and medical financial assistance. Workers’ compensation shields the company from time-consuming and expensive lawsuits while providing the worker with needed financial aid for lost wages and medical treatment.

Workers’ comp and construction workers

Construction workers often face a disadvantage when it comes to workers’ compensation claims. Given the high risk of injury to construction workers, employers should be sensitive to the job’s nature and provide coverage to their employees. The opposite can be the case. Carrying workers’ compensation for a riskier profession comes with a higher price tag. Some employers look to skirt shelling out money for coverage by hiding behind the claim that the employees are contracted.

The National Council of Compensation Insurance (NCCI), funded by insurance companies, provides all but five states with data to populate insurance rates for various professions. The information is used to determine each profession’s risk and, thus, the rate associated with the job. Essentially, the classification code is multiplied against a number representing the history of claims the company has filed. That total is then multiplied by the number of people on payroll. The result yields the company’s premium for workers’ compensation, allowing companies with riskier jobs to pay more than those without the risk.

Misclassification of construction workers

It is not uncommon to see a construction worker misclassified as an independent contractor. In doing so, the company no longer needs to carry workers’ compensation insurance on the employee. The mistake is not always intentional. 

To simplify, an independent contractor has full ownership over their job, supplies, and with who they work. The only part dictated to them is the deadline set. In contrast, an employee usually only works for one client, performs their work at the employer’s location and under the employer’s control and supervision.

Misclassification is such an issue that Pennsylvania passed the Construction Workplace Misclassification Act (Act 72), which sets up specific guidelines for a person to be characterized as an independent contractor. Per this act, to be an independent contractor, you must:

• Have a written contract with the company/business/person for the work
• Control/direct your work
• Own the tools required to complete the job
• Maintain the ability for profit/loss on your work
• Be an owner/partner in your business
• Have a business location different than the business/person for which you are completing the work
• Have previous or current experience in working with others as an independent contractor
• Possess liability insurance of $50,000, at a minimum

In addition to hefty fines, misclassifying employees can result in a misdemeanor or felony charge.  It is important to note that while a relationship may have started as an independent contractor-business, it can change to an employer-employee relationship over time. Due to the numerous complexities and intricacies of contractors and employer specifications, it is in your best interest to seek legal counsel advice.

What claim should a construction worker file?

Depending on the injury sustained and the situation surrounding the accident, the liability can fall on various parties. Construction site owners, general contractors, sub-contractors, manufacturers of equipment, or third parties could all play a role in the cause of the accident. Your claim could be filed under workers’ compensation, a third party claim, or both depending on your state and local laws.

Third party claims

Even if workers’ compensation is not an option, a third party claim may be. A third party claim is when the injured individual (the first party) pursues compensation for injury, pain, and suffering through an insurance company (second party) of a business or person who has caused the harm (third party). If a tool were defective, the third party would be against the manufacturer of the tool.

Personal Injury Claim

In a personal injury case, the lawsuit would be against anyone who caused the accident’s conditions. For example, suppose a construction worker fell while on a ladder. The injured party may be unable to sue their employer for workers’ compensation, but they may be able to sue the ladder’s manufacturer if the ladder was faulty in some way. 

When examining if a personal injury lawsuit is an option, a valid question is, “Was there negligence or recklessness that produced the accident?” Say another worker caused the injury while under the influence, or faulty electrical work caused shock or electrocution. These are situations where a personal injury lawsuit could be applicable. Even if you can draw benefits from a workers’ compensation claim, you may still be eligible for a personal injury lawsuit.

Wrongful Death Claim

If the injury was to a family member who did not survive the accident, the surviving family members might be able to pursue a wrongful death lawsuit. Often wages lost and compensation for the death of the family member are paid out to the survivors.

Product Liability Claim

A product liability claim is when the injury to a worker was caused due to a defective product or piece of equipment. In this case, you can sue any party in the chain of distribution, including the retailer who sold the product or the manufacturer.

Workers’ compensation claim process

It is imperative to follow time-sensitive steps should you find yourself in the position of a job-related injury. By doing so, you ensure the best chance of coverage for your workers’ compensation claim. If you take too long to file for a claim, you may lose your opportunity to obtain coverage through workers’ compensation. Some workers do not file because of a fear of employer retaliation; however, an employer cannot fire you, retaliate against you, or take away your benefits for filing a workers’ compensation claim.

• Seek medical attention promptly. If you do not require emergency attention, ask your employer if they require a particular doctor or hospital for workers’ compensation claims.
• Report the injury to your employer as soon as it is safe to do so. Obviously, if you are seriously bleeding, control the bleeding before calling your employer. Many states have a time limit for reporting an injury, so do not delay to start a claim. File an accident report even if you feel you can walk away without medical attention as sometimes time reveals a more severe injury than initially assumed.
• Document the incident and others’ testimonies of what happened. Obtain contact information of anyone who witnessed the accident.
• Take pictures of the scene and any equipment or tools involved.
• Contact The Hayes Firm to start the legal process and explore your options. An insurance adjuster will likely contact you to assess how much money the insurance company needs to pay. The first offer will probably be low. More often than not, injured workers will take the first offer without realizing future needs for therapy or rehabilitation. An experienced lawyer fights for the compensation you need for both current and future medical needs, whereas you may waive your rights to additional claims without realizing.

Although most employers do not seek to injure their employees, there are times where an injury may appear to have been intentional. Suppose you feel this may be what happened. In that case, an experienced lawyer will evaluate if a lawsuit can be filed against your employer or a third party such as construction site owners, general and subcontractors, architects, engineers, or manufacturers.

Through OSHA, an employee’s rights may have been violated. For example, a construction worker should have copies of any testing done on a site regarding environmental hazards. They should receive training, injury prevention, and information on any construction risks, as well as OSHA standards that apply. An employee has the right to ask OSHA to inspect construction sites for compliance and review any records of past injuries or illnesses at a site. If these rights were denied and an injury occurred as a result, a lawyer experienced working with OSHA can file a complaint on your behalf and obtain the compensation owed due to negligence in meeting the protocols.

Seek out a workers’ compensation lawyer

Workers’ compensation laws are complex. Navigating differing state and local laws, third party claims, time frames, and pain is overwhelming, if not impossible. 

At The Hayes Firm, we recognize construction workers are often underrepresented and paid low compensation for injuries. We are here to help. Our firm connects you with personal injury lawyers experienced in fighting for lost wages, medical expenses, therapy, pain and suffering, disability, and wrongful construction workers’ deaths. We tirelessly fight to ensure you receive proper compensation for your injuries. 

You do not need to combat this alone. Contact us today.