Construction Accident Claim: Workers' Comp and a Third-Party Case

Workers' compensation is a trade. Your employer's insurer pays your treatment and part of your wages after a work injury without arguing about fault, and you give up the right to sue your employer for negligence. For a worker injured by their own employer's carelessness alone, that is the whole claim. It does not pay for pain and suffering, it pays only a fraction of lost wages, and the benefit schedules for permanent injuries are modest.

Construction sites are different from most workplaces because many employers are present at once. The general contractor controls the site. Subcontractors control their own trades. The owner may retain control over safety. Equipment is rented from one company and manufactured by another. When a worker employed by one subcontractor is hurt by another subcontractor's unsecured load or the general contractor's failure to guard a floor opening, the worker has a negligence claim against that other party, and the workers' compensation bar does not protect it.

The third-party claim is a full personal injury claim: medical expenses, all lost earnings and earning capacity, and pain and suffering. On a serious injury, it is usually worth many times the workers' compensation benefits, and identifying it is the first thing an attorney does with a construction case.

Falls from height are the leading cause of construction deaths. They involve scaffolds, ladders, roofs, floor openings and unprotected edges, and the responsibility often lies with whoever erected the scaffold, failed to install guardrails, or was required by the site safety plan to provide fall protection. Scaffold collapses frequently involve the erecting subcontractor and the general contractor's inspection duty.

Struck-by injuries come from falling tools and materials, vehicles and swinging loads. The crane operator's employer, the rigger, and the contractor that failed to establish an exclusion zone are the usual third parties. Electrocutions involve contact with power lines or energized equipment and often implicate the utility, the electrical subcontractor, or a contractor that failed to de-energize. Caught-between injuries, in trenches and between machinery and fixed objects, point to the excavation contractor and whoever was responsible for trench protection.

Equipment failures, from a defective harness to a lift that collapses, add a product liability claim against the manufacturer or the rental company. These claims do not depend on anyone's negligence at the site, only on the product being defective.

Suppose you are a carpenter employed by a framing subcontractor on a commercial site. You fall twelve feet through a floor opening that the general contractor's crew had uncovered that morning and failed to guard or mark, fracturing your pelvis and both wrists. Surgery, three months of rehabilitation, and a permanent limitation on climbing and heavy lifting follow. Medical bills reach $185,000 and you are off work for seven months.

Workers' compensation through your employer pays the medical bills and about two thirds of your average weekly wage during the time off, subject to the state's maximum, plus a scheduled award for the permanent impairment. It pays nothing for the pain of the injury or for the fact that you can no longer work as a framer at full capacity.

The third-party claim is against the general contractor, which controlled the site and whose crew created the hazard, supported by the OSHA citation issued after the accident for the unguarded opening. That claim seeks the full lost earnings, future lost earning capacity in a trade you can no longer fully perform, and pain and suffering. The workers' compensation insurer asserts a lien for what it paid, to be repaid from the third-party recovery, usually reduced for its share of the attorney fees. The third-party claim is where most of the value is. All figures are hypothetical.

The workers' compensation claim and the third-party claim need different things, and the evidence for the second disappears as the site changes day by day.

• Report the injury to your employer immediately and in writing; workers' compensation notice deadlines are short, and late notice is the most common reason for denial.
• Get medical treatment and tell every provider it was a work injury, so the records go to the right insurer.
• Photograph the hazard, the equipment and the location before it is fixed, or ask a co-worker to; sites are corrected within hours of an accident.
• Get the names of witnesses and of every company working on the site that day, including the general contractor and the equipment rental company.
• Find out whether OSHA was notified and request a copy of any inspection report or citation.
• Keep the equipment involved if it was yours, such as a harness or lanyard, and do not let it be repaired or discarded.
• Do not give a recorded statement to any insurer other than the workers' compensation carrier without advice, and do not sign releases from other contractors' insurers.
• Keep a record of all time missed, modified duties and changes in pay.

Workers' compensation is state law and the benefits, notice deadlines and permanent impairment schedules vary widely. Some states allow a limited suit against the employer for intentional conduct or for failing to carry workers' compensation insurance. Texas is unusual in allowing employers to opt out of the system entirely, in which case the injured worker can sue the employer in negligence.

Third-party claims follow the state's negligence rules. A few states have construction-specific statutes: New York's Labor Law imposes strict liability on owners and general contractors for gravity-related injuries such as falls from scaffolds and ladders, which makes third-party claims there much stronger. Comparative negligence applies elsewhere, reducing recovery by the worker's share, and Alabama, Maryland, North Carolina and Virginia bar recovery for any worker fault.

The deadline for the third-party lawsuit is the personal injury statute of limitations: one year in Tennessee and Kentucky, two in Texas, California, Florida and Georgia, three in New York and North Carolina. Workers' compensation claims have their own notice and filing deadlines, often measured in days for notice and one to two years for the formal claim. Claims against a government owner require early notice, sometimes within months.

Employers must report a worker's death to OSHA within eight hours and a hospitalization, amputation or eye loss within 24 hours. An inspection often follows, and the inspector's report and any citations describe what was wrong on the site in language that is hard for a defendant to argue with. A citation for an unguarded opening, a missing guardrail, inadequate trench protection, or lack of fall protection is strong evidence of negligence in the third-party claim.

OSHA citations are issued to employers, which may include the general contractor and the subcontractor that controlled the hazard, not only your own employer. Citations issued to a third party are the ones that matter for your claim. You can request the inspection file, and an attorney will do so as a matter of course.

OSHA does not compensate workers and does not decide fault. Its role in your claim is as a source of evidence and of the standards that define what a reasonable contractor should have done.

A construction injury handled only as a workers' compensation claim is often a claim with most of its value left behind. Identifying the third parties, preserving the site evidence, obtaining the OSHA file and coordinating the two claims so that the compensation lien does not consume the recovery is work that has to start early. Most personal injury attorneys work on contingency, and many handle the workers' compensation and third-party claims together.

Ask Legal Matters is a free claim-review request service, not a law firm. Requests may be shared with independent attorneys and legal services partners who handle inquiries in your state, and an attorney must evaluate the facts before anyone can say whether a third-party claim exists. If you were hurt on a construction site, you can request a free claim review.

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