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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Undocumented Workers and Third Party Claims

In 2010, foreign-born workers made up 15.8 percent of the U.S. labor force, nearly half of them Hispanic and more than a fifth of them Asian. The foreign-born are more likely than native-born workers to be employed in service occupations like transportation, construction and maintenance. Foreign-born workers are also more likely to perform high-risk jobs, possibly because they are unwilling to refuse these assignments for fear of being fired.

Foreign-born Hispanic workers are especially at risk of employment-related injury. From 1992 to 2006, their rate of work-related deaths was consistently higher than for other workers. Many of these fatalities occurred in the construction industry. Along with the fact that foreign-born Hispanics are more likely to hold high-risk jobs, they often have inadequate knowledge and control of recognized safety hazards, inadequate training, and poor supervision which is often made worse by differing levels of language and literacy skills among groups of non-native workers.

Workers Compensation

When undocumented workers are injured on the job, state law determines whether they will be awarded Workers Compensation benefits. 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.

Some states, like New York, allow undocumented aliens to receive Workers Compensation while others prohibit it as being contrary to IRCA. Regardless of entitlement to benefits, courts have held that illegal aliens have the right to file a case in civil court when they are injured on the job by someone other than their employer or co-employee.

Third-Party Claims

Jose Madeira was working as a roofer at a development site in Monroe, N.Y. when he fell from the top of a building. He sustained serious injuries, required four surgeries and three hospitalizations and was substantially disabled. Madeira filed a third party lawsuit against the general contractor and construction site owner for violating New York’s workplace safety laws. In this case, the court ruled that IRCA did not prevent an injured, undocumented worker from recovering lost wages. Although Madeira’s employer had knowingly hired him in violation of IRCA, Madeira himself did not do anything to violate the law.

Later cases have held that illegal aliens may be barred from receiving back pay or lost wages when they knowingly submit false work authorization. Third party lawsuits by undocumented workers require a careful examination of the facts by an attorney who knows this area of law.

Because foreign-born workers are exposed to elevated risk of injury and death, it is important that they have access to the courts when they seek recovery for their injuries. As one court has held, to refuse them creates an incentive for unscrupulous employers to target illegal aliens for work in the most dangerous jobs and to provide them with substandard, unsafe working conditions.

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Illegal Immigrants and Workers Compensation

The question of whether illegal immigrants can receive Workers Compensation is a complicated and unsettled one. Under federal law, the 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. The issue of entitlement to benefits remains unresolved because states have their own Workers Compensation laws and there are no clear guidelines as to how to interpret, apply and accommodate federal law.

States Split On The Issue

The U.S. Supreme Court has declined to rule on whether the prohibition against hiring illegal aliens automatically prevents them from being awarded Workers Compensation benefits. In the absence of a definite federal mandate, states are left to decide the issue for themselves. Virginia’s highest court concluded that illegal aliens do not qualify for Workers Compensation because they cannot legally enter into a contract of employment. Wyoming and Idaho restrict the payment of Workers Compensation benefits to legal aliens. Florida disqualifies Workers Compensation applicants who submit false or misleading statements about their identity in order to obtain employment.

Other states, such as Ohio, have interpreted their state Workers Compensation statutes as including illegal aliens in benefit eligibility. New York has also construed its statute to permit payments to undocumented workers. Courts in Louisiana, Pennsylvania, Georgia and Minnesota have ruled that IRCA does not override their own jurisdictions’ Workers Compensation laws in allowing benefits to illegal immigrants.

Does Excluding Illegal Immigrants Cause Problems?

Many state courts believe that excluding illegal aliens from eligibility for Workers Compensation creates a financial incentive for employers to hire undocumented immigrants. 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.

Wyoming, for example, which prohibits payment of Workers Compensation benefits to illegal aliens, has a worker death rate three and a half times higher than the national average. Growth in the oil, gas and mining industries has drawn thousands of people to Wyoming in search of high-paying, albeit highly dangerous, jobs. Because these workers so often have no fixed residence in the state they fear they will be fired if they complain of safety problems. They are also hesitant to file lawsuits or report their injuries. Wyoming may or may not be hiring illegal immigrants for these very hazardous jobs but the state’s employers are clearly lacking in accountability for proper worksite safety procedures.

State Workers Compensation laws appear to be at odds with federal immigration law in the treatment of undocumented workers who are injured on the job. However these issues are resolved, the principal concern is worker safety, regardless of national origin.

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New York Workers’ Compensation Reform Efforts Continue

Workers’ compensation rates in New York were decreased for the first time this year since 2008. In July, Governor Andrew Cuomo announced the lower workers’ compensation premiums as a final measure to implement reforms from a law passed in 2007. Earlier in 2012, other changes were also implemented from the 2007 workers’ compensation reforms including instituting treatment guidelines and benefit caps. The goal of these changes is to improve the New York workers’ compensation system for both employers and claimants.

Debate About Workers’ Comp Premiums

The Workers’ Compensation Reform Act became law in 2007, when New York’s workers’ compensation costs were 80 percent higher than the national average. Its goal was to increase weekly payout benefits for workers while also reducing insurance premiums for New York employers, saving state businesses $1 billion. The reform law also instituted a cap on cash benefits of 10 years for workers with permanent partial disabilities, and outlined further guidelines for medical treatment and reporting, among other key provisions.

Rates are also determined based on new policies, cost reduction measures and marketplace experience. Earlier in 2012, the New York Compensation Insurance Rating Board suggested raising the workers’ compensation rates based on the state’s annual loss cost filing. The New York Department of Financial Services and Governor Cuomo’s administration disagreed, however, and rejected the rate increase after a review of written submissions and filings. Instead, the worker’s compensation rates are set to lower during 2013.

Impact of Reductions in Rates

Governor Cuomo’s administration reduced the workers’ compensation premium rates for the upcoming year by 1.2 percent, which was the first decrease since 2008. Governor Cuomo cited job creation, economic reform and businesses competitiveness as the main reasons for the rate reduction, as well as making the workers’ compensation system more effective for claimants and less expensive for employers. Labor leaders agree with the decreased premiums and reforms, stating they will avoid “an erosion of benefits through inflation.”

According to the Superintendent of the New York Department of Financial Services, the premium reductions and other reforms ultimately benefit all parties to the workers’ compensation system, including employers, employees and insurers. For workers, these reductions will hopefully help to ensure they are covered appropriately by their employers and, if a work injury does occur, that they receive the workers’ compensation benefits they deserve through a more efficient and effective process.

Third Party Claims: An Attorney Can Help

If you were recently injured during the course of your work duties contact a New York attorney for advice about how to proceed. In addition to pursuing workers’ compensation benefits, you may be able to pursue a third-party claim. These suits can be filed against negligent parties other than your employer like contractors and subcontractors. These claims are not monetarily limited like workers’ compensation benefits, so you may receive more funds than under a typical workers’ compensation claim. An attorney can provide further advice about potential claims based on your specific case.

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More American Workers Now Dying in Workplace Accidents

Despite new technologies and safety advances, increasing numbers of Americans are dying in workplace accidents. According to data from the Bureau of Labor Statistics, 4,690 workers died as the result of traumatic workplace injuries in 2010. This is an increase from the 4,551 fatalities in 2009. To put the current number in perspective, about 13 workers die on the job each day in America.

13 Job-Related Deaths A Day

Secretary of Labor Hilda Solis stated, “Every day in America, 13 people go to work and never come home. Every year in America, nearly 4 million people suffer a workplace injury from which some may never recover. These are preventable tragedies that disable our workers, devastate our families, and damage our economy.”

The construction industry is responsible for a significant percentage of workplace fatalities. In 2010, 18.7 percent of workplace deaths were due to construction accidents. Over a third of the fatalities on construction sites were caused by falls. The other three main causes of construction worker deaths were electrocutions, being struck by objects and being caught in between objects. The Occupational Safety and Health Administration (OSHA) refers to these four causes of construction accidents as the “fatal four.” The fatal four cause 437 construction worker fatalities each year.

Construction Accidents In New York City

New York City has been taking action to reduce construction accidents. After two crane accidents in 2008 killed three workers, and a demolition fire in 2007 killed two firefighters, the city began passing new rules and laws to prevent such accidents. According to the mayor’s office, over 5,000 stop-work orders were issued by the Buildings Department in 2011 for safety violations.

The enforcement of the new safety regulations appears to be making a difference. Construction accidents in New York City fell by 18 percent in 2011; and accidents causing injury decreased by almost eight percent. These gains occurred even as construction activity increased by almost eight percent.

Despite these improvements, five New York City construction workers lost their lives in accidents due to safety violations. The loss of even one life from such a preventable accident is far too many.

Contact An Attorney

If you or a loved one has been injured in a construction or other workplace accident, contact an attorney to discuss your rights and potential claims. An experienced attorney can advocate on your behalf to help ensure responsible parties are held accountable.

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