Workers’ Comp and Third Party Claims Help Injured Construction Workers

Recently, New York crane operator Douglas Fitzmaurice was in the process of moving a 35-ton crane from one side of a sloped concrete spillway to another when the unthinkable happened: the crane toppled, pinning Fitzmaurice beneath it.

Rescuers rushed to the scene and struggled to free Fitzmaurice, who was reportedly conscious and talking. But, after holding on for almost four hours, Fitzmaurice succumbed to his injuries. He died shortly after 6 p.m.

Unfortunately, the crane accident that took Fitzmaurice’s life, and all manner of other construction mishaps, are all too common occurrences. But, there are resources available to help injured workers or their families through tough times. Although many are not aware of it, third party liability claims can often supplement workers’ compensation payments following a construction accident.

In New York, Workers’ Comp Is Exclusive Remedy against Employers, But Third Party Claims Viable

Workers’ compensation is a form of employer-provided insurance that supplies income and provides medical care for workers who suffer injury or illness as a result of their job. When a worker is killed on the job, his or her surviving spouse and dependants will receive weekly workers’ compensation cash benefits in the amount of two thirds of the worker’s average weekly wage.

Generally, fault of the employer or employee is irrelevant in a workers’ comp claim; as long as the injury is work-related, benefits should be provided. Under New York law, workers’ compensation is typically the sole remedy a worker has against his or her employer for on-the-job injuries; however, additional payments may be obtained in a lawsuit against a negligent third party.

A variety of situations can give rise to third party liability in a workplace accident: perhaps the property owner of your jobsite ignored hazardous conditions, an outside contractor or an improperly functioning piece of equipment caused your injury, a medical care provider caused further damage while attempting treatment or you were injured by another driver in a motor vehicle accident while traveling in a work-related capacity. Any time someone other than your employer or a coworker contributed to your workplace accident, you may be entitled to collect workers’ compensation in addition to pursuing a third party claim.

Get the Most Out Of A Third Party Claim

Unlike workers’ compensation claims, which are filed with the New York State Workers’ Compensation Board, a third party claim is a lawsuit filed in civil court. The compensation provided by a third party claim can include damages for pain and suffering as well as future lost wages; a successful third party claim almost always means more compensation for injured workers or their families.

If you have been injured in a construction accident, or if a loved one has been killed, do not delay. Contact an attorney today to discuss how workers’ compensation and/or a third party claim could help you secure the fullest recovery possible.

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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.

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Undocumented Aliens May Sue for Work Injuries

If you are an undocumented worker in the U.S. and you are injured on the job, you can file a lawsuit in civil court to recover damages. There are two limitations on your right to sue. First, the injury must have been caused by someone other than your employer or co-worker. Second, the documents you submitted to obtain work authorization must not contain false statements knowingly made by you.

Foreign-born workers in the U.S. often work in transportation, construction, and maintenance. Because these types of occupations are often dangerous, immigrant workers are more likely than native-born workers to be injured on the job. Furthermore, undocumented workers will often take on high-risk work assignments because they are afraid they will be fired if they refuse.

Under the Immigration Reform and Control Act (IRCA) it is unlawful for employers to knowingly hire illegal aliens and unlawful for illegal aliens to submit false or forged identity documents to obtain employment. As long as you did not knowingly do anything to violate the law, IRCA does not prevent you from recovering lost wages if you are injured on the job, even if you are undocumented.

If you are an undocumented worker injured on the job, you should discuss your case with a reputable, experienced attorney as soon as possible.

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Workplace Injury and Third Party Liability

Thousands of workers are crippled or killed each year in workplace accidents. Although Workers Compensation is the exclusive remedy for most worksite injury, the benefits provided are often inadequate to cover all damages. In addition, because workers compensation was designed as a no-fault system, it fails to place responsibility squarely on those who have a duty to maintain safe working environments.

Accident-Prone Construction Sites

Construction sites present unlimited opportunities for accidents and injuries. In one court case, plaintiff was working as an electrician while an employee of the duct work subcontractor was improperly operating a hoist. The hoist unbalanced and fell over, causing plaintiff to be hit and injured by an overhead lighting cable. In other cases, serious and sometimes fatal mishaps occur because of faulty machinery. For example, one worker was killed when a “ram” weighing 4600 pounds broke loose from a vertical boring mill and struck him. Another worker was hurt by molten metal flashing out of a die casting machine. The machine contained no warnings of this risk, even though the worksite manager was aware of it.

In some states, employers will not have workers compensation immunity when their conduct is substantially certain to cause injury to an employee. These situations often arise when employers are aware of a certain danger but knowingly and intentionally fail to take action to prevent it from causing injury. Further, employers who knowingly and intentionally violate OSHA safety regulations may also be held liable for worker injury resulting from such misconduct.

About Third-Party Litigation

Third party litigation requires a substantial level of expertise. Lawyers must know how to properly investigate a workplace injury and determine who should be held responsible. For instance, the manufacturer of a product has a duty to insure that the product is safe for its intended use. Unfortunately, equipment may be defectively designed, inadequately inspected, carelessly assembled and or inadequately tested. It may be lacking adequate warnings and directions for proper use as well as proper safety devices. The supplier of the equipment may neglect to provide all required safety devices. Or, the person who inspects or maintains the machinery may cause it to become unsafe. A third party who modifies or alters a product and renders it unsafe is legally responsible for the injury that it causes.

A safe working environment is one in which the risk of employee injury is eliminated or controlled as much as possible. Third parties must be held liable for hazards created by unsafe machinery and materials. They have a duty to make employees aware of worksite dangers, to train them in proper safety procedures, and to provide them with the necessary equipment to shield them from workplace accident and injury.

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Undocumented Workers in New York May Apply for Workers Compensation Benefits

Each state has its own Workers Compensation laws. Some states do not allow payments to undocumented workers at all. Other states, like New York, do permit undocumented aliens who are injured on the job to apply for Workers Compensation benefits.

Generally, the federal Immigration Reform and Control Act (IRCA) makes it unlawful for employers to knowingly hire an unauthorized alien. IRCA also prohibits unauthorized aliens from submitting false or forged identity documents in order to obtain employment. Although some states do allow undocumented aliens to apply for Workers Compensation, there is no federal mandate which sets out guidelines for states to follow. Furthermore, the U.S. Supreme Court has declined to rule on this issue and clarify it. As a result, states are left to decide for themselves whether undocumented aliens are entitled to receive Workers Compensation benefits.

Many state courts believe that preventing illegal immigrants from applying for Workers Compensation creates a financial incentive for employers to hire undocumented aliens. Such practices directly contradict the stated purposes of IRCA. Further, granting employers immunity from paying Workers Compensation benefits to illegal aliens makes them less inclined to maintain safety in the workplace

These issues are often difficult to resolve and seem to be in conflict with federal immigration law. If you are an undocumented worker who is injured on the job, it is important that you discuss your case with a knowledgeable attorney to see if you can apply for Workers Compensation.

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