“Can insurance blame a construction worker for his injuries?”
Apr 22, 2019 | 4140 views | 0 0 comments | 264 264 recommendations | email to a friend | print

A forty-two-year-old immigrant construction worker sustained bodily injuries after the collapse of a scaffold at a construction site in the Bronx. As a result of the accident, the worker suffered rib fractures and injuries to his neck and lower back that required extensive medical treatment, including injections and surgery. He was unable to return to work and filed a Workers’ Compensation claim with his employer’s insurance.

Workers' compensation is insurance for employees that provides payments for lost wages and medical care to workers that get injured or become ill as a direct result of the work they perform. Employers pay for this insurance and cannot require the employee to contribute to the cost of the policy. Weekly cash benefits and medical care are paid by the employer's insurance carrier, as directed by the Workers' Compensation Board. The Workers' Compensation Board is a state agency that processes the compensation claims. In a workers' compensation case, no one party is determined to be at fault. Injured worker's fault in causing an accident does not affect his or her eligibility to receive Workers' Compensation benefits. However, a worker loses his or her right to workers' compensation payments, if the injury results solely from his or her intoxication from drugs or alcohol, or from the intent to injure him/herself or someone else.

In this case, the injured worker also filed a lawsuit against the general contractor and owner of the construction site, asserting violations of Labor Law § 240(1). Labor Law § 240(1) protects construction workers from gravity-related risks such as falling from a height or being struck by a falling object. Violation of this statute puts the automatic liability on construction site owners, as well as general contractors. The injured worker's negligence cannot be taken into consideration by the judge, which makes this statute very plaintiff-friendly. 

The construction worker argued here that the defendants allowed him to work in an unsecured area and failed to provide him with a safe scaffold.

The court granted the plaintiff's motion for partial summary judgment on his Labor Law § 240(1) claim, finding the defendants liable for the plaintiff’s accident and injuries.

Even though the court declared liability in favor of the plaintiff, the extent of damages still had to be established. At the mediation, the plaintiff rejected the low settlement offers extended by the insurance representing defendants, which meant that the case had to go to trial.

The plaintiff argued in front of the jury that as a result of the injuries he sustained in the accident, he had been rendered permanently unemployable. Plaintiff's most serious injuries included disc herniation in his cervical spine at the C5–C6 level, and a disc herniation in his lumbar spine at the L5–S1 level. After a series of five epidural injections proved ineffective, he underwent a discectomy and fusion at L5–S1. The injured worker complained that everyday activities with his family are painful and difficult. He testified that he has problems with prolonged sitting and walking. He stated that even though the surgery improved the condition of his lumbar spine, he still suffers from pain and has residual limitations. The plaintiff testified that although he receives temporary relief from medications, physical therapy, and injections, he exhibits a limited range of motion, both before and after the surgery. The plaintiff argued that he still takes prescription pain relievers, anti-inflammatories, and muscle relaxants.

Defendants argued to the jury that this accident did not cause any injuries to the plaintiff's cervical spine or lumbar spine, but instead, it was the consequence of the plaintiff's having performed heavy labor, in either construction or the sugar cane fields in Mexico, for approximately 27 years before his fall. Medical experts hired by the defendants' insurance company opined that the spine surgery was not medically necessary.

After lengthy deliberations, the jury awarded the plaintiff almost $3,106,714.00 in damages, consisting of $500,000.00 for past pain and suffering, $900,000.00 for future pain and suffering, and $1,706,714.00 for future medical expenses, with the awards for the future intended to compensate the plaintiff over 28 years.

If you or someone you know has been injured in an accident, please contact The Platta Law Firm for a free legal consultation by calling 212–514–5100 (24/7), emailing swp@plattalaw.com or visiting our law firm in Financial District of Manhattan (42 Broadway, Suite 1927). You can also ask us questions using the 24-hour chat box on our website (www.plattalaw.com). We offer free consultations for all potential personal injury cases.

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