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Certain types of work entail increased risk of personal injury. In the construction industry as well as other fields, workers regularly perform tasks that expose them to potential hazards. They may slip, trip, or fall from an elevated space, scaffold, or ladder, be pinned or crushed by unsecured equipment or machines, come into contact with harmful substances, or experience shocks and electrocution.1 The tools and instruments that workers use in daily operations, as well as the elevated, or below-ground locations where they work, are circumstantial to injury. In other instances, employees who are “on the clock” sustain personal injuries not directly associated with the duties of the job. For example, an employee driving a company vehicle is at risk for a collision with another vehicle, and may be injured by a negligent driver.
Personal injuries sustained on the job, whether the employee is in the actual workplace or elsewhere in the community, are covered by a complex network of insurance policies, liability duties, and industry practices. Navigating this network requires extensive experience analyzing workplace standards and employer responsibility.
After a workplace accident, injured persons may suffer serious impairment in a variety of necessary capacities. They may be unable to perform ordinary tasks and/or retain gainful employment.
To offset physical, emotional, and financial strain, employees who sustain a personal injury while undertaking the tasks of the job or performing certain duties as instructed by their employer are entitled to seek compensation. The purpose of a personal injury attorney in the case of a workplace accident is to facilitate this pursuit of compensation.
Some injured employees are covered by insurance policies known as “workers’ compensation,” while others are not. In Texas, workers compensation policies are not mandatory; employers who choose not to retain them, so-called non-subscriber employers,” are required to inform employees that they are not covered by workers’ compensation insurance. A person who has been injured while working for an employer who carries workers’ compensation insurance is oftentimes told that no lawsuit is feasible or worthwhile, although this assumption may be inaccurate. It may even be a tactic on the part of the employer to dissuade an injured worker from pursuing his/her legal rights in the case of catastrophic injury. Contrary to the common assumption about workers’ compensation cases, an injured party may be permitted to sue for damages in certain circumstances. For example, an employee who was injured by a defective product or a hazardous substance/material may be able to bring a product liability case against the manufacturer. An employee who was injured as a result of a third party’s negligence may be able to bring legal action against the third party.
According to the US Bureau of Labor Statistics, 2.9 million nonfatal workplace injuries and illnesses were reported in 2016 by private industry employers. That amounts to just under 3 cases per 100 full time workers in the industries of construction, manufacturing, finance and insurance, retail trade, and wholesale trade.2 Just under 900 thousand of them resulted in “days away from work” (DAFW), an important metric in workplace injuries and illnesses. In the Survey of Occupational Injuries and Illnesses, it is noted that data collection and assessment of personal injury in the workplace are complicated by a number of factors, including “employee fear about reporting, lack of employer awareness of reporting requirements, complex definitions of workplace injuries, difficulty determining whether an injury actually occurred at work or is otherwise work related, disputes over responsibility, measurement issues, and more.”3
In 2016, fatal injuries in the leisure and hospitality sector were up 32 percent (225 to 298) and reached an all-time series high. This was largely due to a 40-percent increase in fatal injuries in the food services and drinking places industry from 118 to 165.4 In Austin, TX, where the leisure and hospitality industries employ a significant percentage of the population, these figures are alarming, and indicate that many members of our community are in harm’s way when they go to work.
Professionals who install or maintain overhead powerlines, work on major construction projects, or dig underground for infrastructural purposes related to gas and utilities are more likely than the general public to be catastrophically injured. They may suffer loss of appendages or limbs, or even sustain fatal injury. The type of injury that an employee sustains in the workplace corresponds to the nature of the work he or she most often performs. Likewise, certain types of injury correspond to the responsibilities of organizations or companies that oversee workplace activities and the sites where those activities occur.
The four major causes of death in construction site injuries—classified by the Occupational Safety and Health Administration as the “fatal four”—are falls, electrocutions, struck-by, and caught-in/between. In 2013, they accounted for 58.7% of the fatal injuries in construction.5
In many worker injury cases that occur at construction sites, liability falls to the general contractor and/or construction management. This is the person, company or group responsible for workers’ safety. And the injuries correspond in particular ways to safety requirements and standards that assist in the determination of liability. For example, when a worker falls from a cracked scaffolding plank, this may reflect the general contractor or construction management’s failure to require scaffold grade lumber.6 If a worker is crushed by falling masonry that is blown over by wind, this may reflect a failure of the
general contractor or construction management to require bracing of the wall.7
In other workplace injury cases, the liability is not the general contractor’s, but instead falls to the premise owners, who may have failed to comply with certain safety standards. For example, if a roofer falls through a roof opening while making repairs, there may be a failure on the part of the premise owner to require roofers to use fall protection.8 If a contractor installing a rack handles materials unsafely, causing a worker to be struck by the materials as they fall, the liability may be associated with the premise owner’s failure to require forklift operators to be trained properly and to handle loads safely.10 If a construction worker in a petrochemical plant is exposed to fire and as a result suffers a burn, the liability may fall to the premise owner who failed to require contractors to wear flame resistant clothing.11
In some workplace injury cases, the damage or personal injury are directly related to the tools or materials that the worker uses. In such instances, the liability may be attributed to a third party such as the lessor of construction equipment (scissor lifts, forklift trucks, etc.), the supplier of work clothing, the scaffold erector, or the architect. These third parties may be associated with the injury sustained by a worker in such a way that a portion of the responsibility is legally attributable to them.
In the case of a workplace injury at a construction site, the following documents should be requested from the general contractor or construction management:
Contract laborers are a particularly complicated class in term of personal injury and insurance coverage. These are workers who are not permanently employed by the organization or company for whom they were working when a catastrophic accident occurred. According to the guidelines of the Occupational Safety and Health Administration (OSHA), injuries sustained by contract laborers should be recorded by the “establishment that provides supervision to the injured worker,”12 which may be the construction company rather than the contracting agency. However, workers’ compensation for the contract laborer would be the responsibility of the contracting agency, rather than the company or organization who retained the services of the laborers.
Whether an accidental injury happens on the job or in the context of informal ordinary activity, personal injury cases are fundamentally about establishing first the origin and cause of an injury, and second the liability and negligence of parties that are accountable. This is a process that requires expertise and extensive research. A skilled attorney ascertains origin, cause, and liability in order to build a sound case against an employer, a premise owner, a product manufacturer, or a third party. More often than not, the case involves multiple parties involved with various aspects of an injury scenario.
The origin of a personal injury is a way to determine simply where an accident began. For example, a fire that injures a worker whose job is to install household appliances may have originated in an electrical socket in the hallway of a residential building. The origin of an accidental event gives investigators and attorneys basic but insufficient information about the nature and scope of the case. They discover placement so as to start researching causal factors.
The cause is the reason for the malfunction that led to the accident that led to a personal injury. It is the “why” something went wrong in a way that led to injury. Cause is seldom if ever simple. Although cause is often associated with the origin of an accident—a fire that began in an electrical socket may have been caused by faulty wiring or inexpert installation—origin is a matter of location and cause is a matter of responsibility. In some cases of personal injury, workers and attorneys assume that the employee misconduct was too significant to make a lawsuit worthwhile. However, “the fact that a worker’s behavior led to injury does not mean that the worker’s conduct was a cause of injury.” 13
In a legal context, responsibility is interpreted through the concepts of liability and negligence. For example, if a professional welder is injured while working on a construction site, perhaps by a live wire or a heavy falling object, several questions arise: First, who was responsible for the welder’s safety? For whom was he/she working at the time of the accident? Second, who was responsible for the quality of the materials, structures, or installations that broke or failed to operate properly and as a result caused injury? The first set of questions is about employers’ responsibility to the people in their employ, and there is a long legal and labor/managerial history surrounding the issue. The second set of questions refers to the cause of the accident. For example, if the welder was shocked by an electrical wire because an electrician performed his professional duties improperly, the negligent party may be the electrical company that employed the electrician. If the welder was injured by the faulty or unstable scaffolding upon which he/she was climbing, liability may be ascribed to the management of the construction site, who may be found negligent.
Something like the 80/20 law of Pareto’s Principle applies to workplace injuries, and to the cost of compensation for the most severe ones. 14 Roughly 80 percent of serious accidents in a manufacturing industry occurs among skilled tradespeople, including maintenance personnel, millwrights, tinsmiths, machinists, electricians and steamfitters, rather than among the production workers. Simply put, a vast majority of serious injuries happen during unusual and nonroutine tasks. These are so-called low- probability but high consequence events, which means that they are unlikely to happen to most people, including employees in manufacturing or construction industries; but when they do happen, the consequences are almost always severe.
By the same token, of the one million workers’ compensation claims that are filed in the US every year, less than 20 percent represent over 90 percent of the total cost. This means that a small number of injured workers sustain injuries that are so severe as to warrant very large insurance claims; and most claims to a workers’ compensation policy are made on behalf of workers who are injured, but whose claims are relatively low in cost.
1 Thomas Cocchiola, “Workers’ Compensation and Liability,” Professional Safety, January 2018.
2 US Department of Labor, Bureau of Labor Statistics, “News Release,” USDL-17-1482, LINK
3 Bureau of Labor Statistics, “Examining the Completeness of Occupational Injury and Illness Data: An Update on Current Research,” Monthly Labor Review, June 2014.
4 US Department of Labor, Bureau of Labor Statistics, “National Census of Fatal Occupational Injuries in 2016,” LINK
5 Dong Zhao, et al., “Decision-Making Chains in Electrical Safety for Construction Workers,” Journal of Construction and Engineering Management 142 (2016): 04015055-1.
6 Vincent A. Gallagher, Worker Injury Third Party Cases: Recognizing and Proving Liability (Lanham, MD: Bernan Press, 2017), 3.
7 Vincent A. Gallagher, Worker Injury Third Party Cases: Recognizing and Proving Liability (Lanham, MD: Bernan Press, 2017), 5.
8 Vincent A. Gallagher, Worker Injury Third Party Cases: Recognizing and Proving Liability (Lanham, MD: Bernan Press, 2017), 7.
9 Vincent A. Gallagher, Worker Injury Third Party Cases: Recognizing and Proving Liability (Lanham, MD: Bernan Press, 2017), 6.
10 Vincent A. Gallagher, Worker Injury Third Party Cases: Recognizing and Proving Liability (Lanham, MD: Bernan Press, 2017), 8.
11 Vincent A. Gallagher, Worker Injury Third Party Cases: Recognizing and Proving Liability (Lanham, MD: Bernan Press, 2017), 37.
12 Bureau of Labor Statistics, “Examining the Completeness of Occupational Injury and Illness Data: An Update on Current Research,” Monthly Labor Review, June 2014.
13 Vincent A. Gallagher, Worker Injury Third Party Cases: Recognizing and Proving Liability (Lanham, MD: Bernan Press, 2017), xi.
14 Fred A. Manuele, “The Challenge of Preventing Serious Injuries,” Professional Safety, April 2006: 34.
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