Work Injury? Workers’ Comp May Not be the Only Answer

According to the Census of Fatal Occupational Injuries (CFOI), preliminary totals show the number of fatal work accidents recorded in the United States was the lowest since 1992. Nevertheless, there were 4,340 fatal work injuries and the final count in April 2011 is expected to increase that figure by about three percent.

The New York Times reports that Bill Kojola, an expert in the A.F.L.-C.I.O.’s occupational safety department, expressed skepticism in the results, saying, “I would not trust these numbers at the present time. It seemed that the state partners that report fatalities have been delayed because they are strapped for cash.”

Furthermore, to the extent there has been a decline, CFOI acknowledges that economic factors played a major role in any such decrease. Compared to 2008, total hours worked fell by six percent in 2009; the construction industry, which has historically accounted for a significant share of work accidents, saw even larger declines in employment or hours worked.

Beyond Workers’ Compensation

Many employees know they generally give up the right to sue their employer for the ability to pursue workers’ compensation benefits for a work injury. This allows people to seek compensation through an administrative process aimed at providing a faster and more economical result than traditional litigation.

What people may not realize is that the waiver does not extend beyond the liability of the employer. Workers’ compensation does not excuse the negligence of third parties – that is, other involved people or businesses.

Third Party Claims

According to the U.S. Bureau of Labor Statistics, preliminary data indicates that there were 184 fatal work injuries in New York alone in 2009. Depending on the specific circumstances, the families of some of these workers may have claims against property owners, other subcontractors or manufacturers. These third party claims may frequently be more valuable than any workers’ compensation benefits.

Fatal Falls

In 2009, falls at work were the second most frequent cause of death among fatal occupational injuries, totaling 617 nationally; there were 24 fatal work falls involving employees in New York. Roughly half of all fatal falls occur in construction, and may involve falls to lower levels as well as falls from ladders or scaffolding.

Additionally, building and grounds cleaning and maintenance workers were among the few occupations that saw an increase in fatal injuries in 2009. There were 147 fatalities in the U.S. among grounds maintenance personnel alone. Property owners have a duty to provide a reasonably safe environment to both guests and employees. Those who know about dangerous conditions on their property, such as an open stairwell, may be liable to workers who fall. Even if they were not personally aware of the dangerous condition but had reason to know about it, the property owners may still be liable.

Contact with Objects and Equipment

Being struck by an object was the fourth leading cause of a fatal work injury. Nationally, 414 workers died in 2009 after being struck by an object; in New York, that total was 29. Workers who are struck by objects or equipment dropped by employees of other subcontractors may have a third-party claim against the other subcontractor. Workers in New York generally give up only the ability to sue their own employers but if another subcontractor acts negligently and causes injury or death, that subcontractor may still be liable for damages.

Caught in Equipment or Object

There were 232 employee deaths from being caught by equipment or objects in 2009; New York saw 10 such fatal job injuries. Employees who are injured as a result of using defective equipment may be able to seek compensation from the manufacturer, distributor or supplier. Companies have a legal duty of care with regard to producing and selling equipment that is reasonably free from defects.

Help for Those Hurt

Labor Secretary Hilda L. Solis reportedly issued a statement saying that even a “single worker hurt or killed on the job is one too many.” An Injured worker is not without recourse and should consult with an attorney regarding their rights to compensation. If the employee has been killed in a work accident, the surviving spouse, child or parent may have a claim for damages. While damages from a lawsuit can never replace the value of the family member lost, they may provide some economic stability while sending a message to the negligent party.

The fatality rate for work injuries in the U.S. in 2009 was highest for Hispanic workers, at 3.7 per 100,000 full-time-equivalent workers. Of the foreign-born workers who were fatally injured, 40 percent were born in Mexico. Of the 63 fatal occupational injuries in New York City in 2009, 20 were Hispanic or Latino.

Undocumented aliens (illegal aliens) who suffer a work injury may potentially be treated just as any other worker, even if they do not have a work permit, work visa or green card. Simply discussing their legal rights with a lawyer does not put them or their families at risk.

Also, those who fear that meeting with an attorney will put their job at risk should know that a confidential consultation with an independent attorney does not become part of their employment files; the meeting can instead equip workers with the information necessary to seek adequate compensation for their injuries.