Construction work has long been recognized as a dangerous occupation, but a recent spate of work-related injuries has had Massachusetts safety advocates concerned. In early March of this year, a Needham man working on a new public safety headquarters at Chestnut and School Streets slipped and fell 15-20 feet into a pit. Although he did not sustain life-threatening injuries, other construction workers in recent months have not been so fortunate.
In the past few months, a forklift worker was killed in Westfield, another suffered fatal injuries in a skid steer loader accident in Chelmsford, a boxcar driver was killed in a collision in Marlboro, and a truck mechanic was crushed by a trailer in Wilmington. MassCOSH Executive Director Jodi Sugarman-Brozan lamented in an interview that the dearth of government safety inspectors may be to blame for lax safety measures and enforcement that has led to these tragedies. Even so, construction contractors are required to conduct regular safety meetings, assess job hazards, and train workers on preventing accidents.
OSHA and MassCOSH
The main enforcer of workplace safety is the Occupational Safety and Health Administration (OSHA), an arm of the Department of Labor whose mission is to assure safe and healthy working conditions and in setting and enforcing safety standards. Although business leaders and politicians often cite regulations that they say are oppressive, overbroad, and allegedly impede business growth and kill jobs, OSHA has proved over the decades to have dramatically reduced work injuries and deaths.
States have their own OSHA-approved programs such as MassCOSH, or the Massachusetts Coalition for Occupational Safety and Health. This agency aims to promote safe and healthy job environments through education and leadership and works with youth and community leaders to train workers to prevent job-related injuries.
Most private employers are covered by OSHA standards and face fines for violations. A serious injury accident or fatality is investigated by OSHA personnel who inspect the accident site, interview workers, witnesses, and supervisors, and issue a report that may include citations and fines, which become public record. A contractor with a poor safety record will often find it difficult to obtain construction contracts or to hire competent workers.
Employers who are covered under OSHA have many responsibilities when it comes to worker safety:
- Provide workers with a safe, hazard-free working environment
- Follow all applicable OSHA rules and standards
- Identify and correct safety and health hazards
- Conduct regular safety meetings and trainings for employees
- Maintain accurate records of worker injuries and illnesses
- Provide protective equipment (PPE) to workers at no cost to them
- Post OSHA violations and citations, and yearly injury and illness data in conspicuous areas
- Post rights and responsibilities under OSHA
- Not discriminate or retaliate against whistleblowers or workers who file complaints
Workers also have certain other rights when it comes to their protection. Temporary workers are also included as having the right to a safe and healthy working environment.
Workers Compensation for Injured Workers
Anyone injured or who becomes ill while engaged in the course and scope of their employment is entitled to certain work benefits including payment of medical expenses related to their injury or illness, and to a percentage of their wages with certain limitations. Injured workers collecting workers compensation benefits need not prove that their employer negligently caused their injury, or disprove that their own negligence led their injury, though there are some exceptions. An injured worker may have to prove that their injury or illness was work-related if challenged by an employer.
Seriously injured workers can participate in job rehabilitation programs if they qualify, and to other benefits based on any permanent injury they sustain including loss of a limb, eyesight, or hearing, as well as payment of death benefits for their family. They are not entitled to compensation for pain and suffering, often the largest damages category in a personal injury claim or lawsuit.
Third-Party Claims for Some Injured Workers
If a worker’s employer failed to provide personal protection equipment (PPE) to a worker or to remove known hazards that led to the injury or was otherwise negligent in causing an injury or death, this does not improve or increase the compensation an injured worker or deceased worker’s family may receive. However, if the injury was caused by a separate contractor or other third party or private individual, then the victim can seek additional compensation through a third-party claim. In nearly all such cases, you will need the services of an experienced personal injury attorney.
In the Needham case cited above the worker may have been injured because a section of the work site collapsed, or it did not have guardrails or other required safety devices due to the negligence of a contractor who did not employ the injured worker. If so, then he may have a separate negligence action against that contractor or subcontractor. Often, workers are injured due to defectively manufactured or designed equipment that may lack safety measures, that do not perform or operate as advertised or expected, that were manufactured with defective materials, or were incompetently constructed. Any other negligence of a third party may also account for injuries.
Unlike a workers’ compensation claim, a personal injury attorney will have to prove negligence on the part of the party who caused the injury. An OSHA investigation can provide proof in many cases where serious violations such as failure to warn of or to identify a hazard, or where the failure to remove or remedy a safety hazard are deemed as factors that led to a serious injury or fatality. The responsible party, usually a contractor or subcontractor, may have failed to conduct safety meetings or trained its workers in safely performing their job or it hired incompetent employees.
Your damages in a third-party claim or lawsuit does include compensation for pain and suffering including emotional distress. In a death case where the liable party’s negligence was particularly egregious, your personal injury attorney can also claim punitive damages.
Be warned, however, that the workers compensation insurer is entitled to reimbursement or to a lien to a certain extent for any additional compensation you receive in a third-party claim. In some cases, the workers compensation insurer will work with the injured worker’s personal injury attorney against the third party’s insurer. Also, the victim can continue to receive medical benefits from the worker’s comp insurer while the personal injury claim is being prosecuted, obviating any need by the personal injury attorney to offer medical liens to health care providers who may not get paid for months or longer in matters where there is only the negligence action.
In third party claims, an experienced personal injury attorney needs to negotiate the lien asserted by the worker’s comp carrier. In many cases, the lien amount can be reduced considerably or even waived in some cases while the victim continues to receive workers compensation benefits.
Damages in a Third-Party Injury Claim
You can still receive substantial compensation in a third-party claim in a work-related accident. These damages may include:
- Past and future medical expenses not paid by workers compensation
- Past and future income loss not paid by workers compensation
- Emotional distress
- Diminished quality of life
- Scarring and disfigurement
- Pain and suffering
- Spousal claim for loss of consortium
In a fatal accident, damages may include:
- Medical expenses, if any, incurred before death and not paid by workers compensation
- Burial and funeral expenses if not covered by workers compensation or union benefit
- Loss of income to dependent family members
- Loss of the decedents’ counsel, guidance, love, and advice
- Punitive damages if the defendant’s conduct was grossly negligent or deemed to be willful, or exhibited reckless disregard for the rights and safety of the plaintiff or victim
Whenever a third-party claim is made in conjunction with a workers compensation claim, complex issues may arise that can jeopardize either claim or lead to a considerable loss of compensation to the injured worker that could have been avoided if you had retained a knowledgeable attorney from the law office of Burns and Jain
Retain a Personal Injury Attorney from Burns and Jain
A skilled personal injury attorney is always essential if you want the most compensation for your work-related or personal injury claim. By retaining a personal injury attorney from the law firm of Burns and Jain, you can be assured that your claim will be vigorously pursued and that your workers compensation benefits protected. Call us at (617) 286-3594 for a free, in-depth discussion of your work-related injury or wrongful death claim.