Injured Worker Compensation and Claims in California

In April 2010, a Kierber Roofing worker fell to his death through a hole in the roof of the Kansas City, Mo., building on which he was working, according to a KCTV5 article. The signal man directs the crane operator from the roof of the building, reportedly one of the safest jobs at the site. According to the story, police said the victim was not wearing a safety harness and workers at the scene explained that they are only required to wear a harness when working within six feet of the edge of the building. Jay Vicory, Occupational Safety and Health Administration (OSHA) spokesman, confirmed that guidelines sometimes do allow people to work without harnesses but cautioned that it needed to be determined whether a harness was required in this instance.

OSHA investigations are typical whenever there is a workplace fatality. The Occupational Safety and Health Act of 1970 is a set of federal regulations governing worksite safety for construction sites and the administration is responsible for its oversight and enforcement. Most states have adopted some variation of the federal safety guidelines with varying results for infractions. For example, an injured worker in California may use evidence of a state safety violation to help establish liability on the part of the employer for an additional benefit or compensation.

Generally in California, the costs of medical care and lost wages are covered by workers’ compensation and the injured worker cannot sue the employer for damages. However, there is an exception for serious and willful misconduct by the employer and an injured employee may use a citation for violation of the California Occupational Safety and Health Act (Cal-OSHA) to aid in establishing this standard of misconduct. Even if no citation was issued, the employee may be able to show evidence of an existing and known violation. The violation must have caused the injury.

Aside from workers’ compensation, workers may have civil claims for damages after a workplace injury. Depending on the circumstances, injured workers may be entitled to compensation from responsible parties including:

• General contractor, prime contractors or subcontractors: Contractors and subcontractors may be liable for failing to ensure that work by independent contractors is being performed safely or to provide a reasonably safe worksite.
• Architects or engineers: Architects and engineers may be obligated to inspect sites to ensure compliance with design plans and code regulations, in addition to being required to adhere to certain accepted professional design standards.
• Manufacturers: If defective equipment such as scaffolding, machinery or tools causes injury, the manufacturer may be financially responsible.
• Property owner: Whether a warehouse owner, commercial lessor or homeowner, the owner of the property may be liable if he or she exerts control over the work being performed or the property itself.
• Insurer: Projects may require different types of insurance, including property liability insurance, commercial general liability (CGL), and employer’s liability insurance; injured workers’ claims may be covered under one of these policies.

Originally, a Cal-OSHA violation could be used only to help demonstrate employer liability for serious and willful misconduct when a worker was injured. Since the state supreme court decided Elsner v. Uveges in 1999, victims of workplace injuries have been allowed to use evidence of violations in a broader scope. Elsner involved a roofing accident as well and the court allowed the injured roofer to use evidence of the Cal-OSHA violation against not only his employer but the employer’s joint venture partner as well. The case introduced a new way to attempt to hold property owners, general contractors, subcontractors and other third parties liable for workplace injuries when a safety violation exists.

Construction workers who have been injured on the job should speak to an experienced personal injury attorney who can discuss the safety regulations and explain the complex liability issues. An experienced lawyer can protect the interests of injured workers, freeing them to concentrate on rehabilitation. If the worker has died from the injuries, his or her family may have claims; while a lawsuit cannot bring back lost family members, it can help financially stabilize the children or spouse left behind.

If you need assistance with your construction accident case, contact Corsiglia McMahon & Allard, L.L.P. Call (408) 289-1417 to schedule a free consultation.