Workers' Compensation

P R A C T I C E A R E A S - W o r k e r s ' C o m p e n s a t i o n

An employee who is injured on the job may bring a claim for lost wages or medical treatment expenses against his or her employer and its workers' compensation insurer. Many attorneys throughout the country specialize in workers' compensation law. Common issues which attorneys confront include defenses, fraud, workers' compensation subrogation and the appeals process. In addition, questions sometimes arise regarding treatment of particular employees such as federal employees, and state and municipal employees. An attorney who is familiar with the workers' compensation system can be invaluable to either an employee or employer/insurer in resolving these issues.

A combination of federal and state laws protect workers from injuries suffered on the job. The federal Occupational Safety and Health Act (OSHA) requires employers to comply with specific health and safety standards promulgated by the federal Occupational Safety and Health Administration as well as a general duty to maintain a workplace free from recognized hazards to workers. Workers can file complaints with OSHA and are protected from retaliation by their employers if they do file charges or assist in the investigation by the government, but workers cannot themselves bring court actions to enforce the OSHA law.

Worker Compensation Benefits
Workers injured on the job are entitled to Worker Compensation benefits, which are available in somewhat variable schemes in all the states. All Worker Compensation laws provide that workers will be compensated for injuries that arise out of their employment. While there can be difficult questions whether a particular injury, disease, or condition was caused by their jobs, the fault of the employer or the employee in causing that injury is irrelevant. Benefits typically reimburse the victim for medical costs and, up to some cap, much of the wages lost due to temporary disability. Generally, there is a schedule of benefits for permanent disabilities to compensate for the physical impairment or loss of potential earning capacity.

Typically, an administrative agency, not the courts, decides whether a worker's claim for benefits ought to be granted. There usually is review in the courts of the decisions the Workers Compensation agency makes.

Construction Accidents
Construction accidents occurring when a building construction project is under way may involve injury to workers or to bystanders.

If an injury occurs to a bystander, the general law of personal injury applies, and the person or persons who are at fault may be held responsible in a lawsuit for the damages caused.
If a construction accident injures a worker, the law of employee injuries applies between the worker and the worker?s employer.

For example, if an injured worker is covered by their state?s workers compensation law, the worker must seek compensation under that law for injuries that are caused by the fault of that worker?s employer.

However, the harm caused to an injured employee of one employer may have been caused by another employer at the same work site, or by another participant in the construction process such as an architect or engineer. In such cases, the injured employee may be able to sue the other parties responsible for the injuries, without being limited by the workers compensation statute.

Whether a particular participant in the construction process may be liable for harm done to an injured worker depends upon the duty owed by that participant to the injured worker. To a large extent, the nature of those duties is determined by the contracts among the various parties. For example, an architect is usually not responsible for workplace safety, so the employee of a subcontractor cannot hold the architect responsible for injuries resulting from an unsafe job site. However, if the architect has agreed to be responsible for workplace safety, the architect may be liable.

Even if a construction project participant is not liable to workers, either because they are not employees or because there is no contractual duty to them, liability may arise if the participant knows of an actual dangerous condition and fails to give proper warning of the danger. Special rules usually apply as well to especially dangerous activities involved in a construction project, such as working with explosives or dangerous volatile substances.

OSHEROW, SHINER & ASSOCIATES, P.A., BOCA CORPORATE PLAZA, SUITE 650, 7900 GLADES ROAD, BOCA RATON, FLORIDA 33434
TELEPHONE: (561) 477-5054 FACSIMILE: (561) 477-3661 www.osherowlaw.com E-MAIL: mrosh@osherowlaw.com