One of the pervasive myths in construction site accident litigation deals with worker’s compensation. People think that if they are entitled to worker’s compensation, or if they are already receiving worker’s compensation benefits, then they cannot bring a lawsuit and that’s not true. It’s especially not true in a construction accident standpoint. Generally, and going away from construction accidents, just speaking generally— it is true that an employee cannot sue their employer if the employee has worker’s compensation coverage for an on the job accident. So, for example, if I have a slip and fall at Dunkin Donuts and I work at Dunkin Donuts, well now I cannot sue Dunkin Donuts, but I will get worker’s compensation through Dunkin Donuts’ insurance carrier and worker’s compensation will give the injured worker lost wages, paid, as well as medical bills, paid.
They can go to an administrative job and discuss it and basically have the payments increased or decreased or modified and then there’s also something known as a section 32 settlement that can happen at the end of the worker’s compensation process. But, with construction site accidents it’s entirely different. Now, if you are injured in a construction site accident— for example, if you fall from a ladder and fall, let’s say, four or five feet from a ladder because of a defect in the ladder itself, or because of the way the ladder was placed, or because maybe there was a little rock or a piece of debris on the floor that caused the ladder to tip— now, you also have been injured in a work-related accident. You also can receive worker’s compensation benefits. You get your lost earnings, you get a worker’s compensation lawyer, you got to a worker’s compensation administrative hearing before a worker’s compensation board judge, and the worker’s compensation insurance carrier sends you checks periodically, so you receive that money, but now because you fell on a construction site, the owner and the general contractor on that site are absolutely liable.
They have a non-delegable duty to you and they have absolute liability. So, under the labor law, section 240, also known as the scaffold law, you can bring a lawsuit against them, the owner and the GC, and you can recover in a third-party lawsuit. You can recover for pain and suffering, you can recover for lost wages that were not covered by worker’s comp, you can recover for future lost wages, future medical expenses, past medical expenses, not covered by worker’s comp. Basically, you can recover for any economic damage not covered by worker’s comp and you can recover for your pain and suffering which is the major monetary compensation that you will receive. So, the fact that this myth is going around, that your only remedy is worker’s comp, is simply untrue and it should be debunked. .