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How to Receive Compensation for a Construction Accident

When it comes to working on a construction site, workplace accidents are practically inevitable. 

Even small scale construction sites host an array of hazards. Construction involves the use of potentially dangerous power tools and often there are many contractors and subcontractors performing different tasks on the same site. There may be heavy equipment, machinery, and building materials involved in the process. 

Taking all of this into consideration, you should never underestimate the risk of serious injury on a construction site. As a construction worker, you may wonder how you may be compensated after involvement in a construction accident.

Workers’ Compensation

Most accidents that occur on a construction site are caused by the worker’s own error or by the negligence of the employer or a co-worker. Due to this fact, most injured construction workers will be able to resort to workers’ compensation benefits to cover lost wages, medical care, and necessary rehabilitation. 

However, if you’ve been involved in an accident where a third party is partially or fully responsible for your injury, it may be possible to bring on a lawsuit in addition to filing a workers’ compensation claim.

Personal Injury Claims

Most injuries that occur on construction sites are caused by the mistakes or carelessness of either the injured party, a coworker, or the employer, falling under the theory of negligence.  However, under the exclusive remedy rule, it is typically impossible to bring a negligence act against your own employer or coworker. 

When multiple contractors or subcontractors are involved or operating at the same construction site, your injury may be caused by a third party. In this situation, it may be possible to pursue a personal injury action against that individual and that individual’s employer.

Product Liability Claims

A product liability claim is filed as a result of an allegation that the plaintiff’s injury was caused by a product that was unsafe, typically by way of a design defect, production defect, inadequate warning labels and instructions, or foreseeable misuse. In this case, the third party (someone outside of that employment) is responsible for the design, installation, maintenance, and appropriate warning labels associated with operating that machinery. Therefore, that person is negligent in carrying out their duties and you may be able to pursue a product liability action against that third-party in relation to the injuries you suffered. 

Exceptions in Construction Accidents

Construction site accidents can also come in the form of long-time exposure to workplace or environmental toxins. For example, shipyard workers have found decades later that they suffered from asbestos-related illnesses. Welders are potentially exposed to manganese in welding rods, causing manganism.  Similarly, use or exposure to lead paint can cause lead poisoning. 

Construction injury cases can pose a bit of difficulty in determining the role of the employer and in some cases can make it harder to determine that an injury is actually work-related. 

No matter what situation they find themselves in, injured construction workers will generally benefit from at least a consultation with a qualified workers compensation lawyer like Montagna Law. A lawyer will be able to review your case for workers’ compensation and also for potential recompense from third-party defendants if applicable.

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Concurrent Jurisdiction

Prior to July 1, 2012 concurrent jurisdiction existed in Virginia. This meant that a Longshoreman or Shipyard worker potentially had the ability to be covered by both the Longshore and Harbor Workers Compensation Act (hereafter “Longshore Act”) and the Virginia Workers Compensation Act (hereafter “Virginia Act”). Many people mistakenly believed this meant an injured worker could obtain a “double recovery” by obtaining benefits under both Acts. That belief was wrong. However, what the injured worker could do was choose which statute provided the injured worker with the best benefits so that the worker could obtain the best medical care and support the family. 

The below are some of the benefits an injured worker lost when concurrent jurisdiction was taken away:

PEPCO: Under the Longshore and Harbor Workers Compensation Act, the Supreme Court decision Potomac Electric Power Company v. Director, Office of Workers’ Compensation Programs, 499 U.S. 268 (1980), determined that an individual with a permanent disability to an extremity covered by the rating schedule of benefits, was only entitled to the rating payments and could not receive any lost wage benefits even if they were permanently unable to return to their preinjury jobs. This draconian provision does not exit under the Virginia Workers’ Compensation Act. Therefore, prior to 2012, a Shipyard worker who fell into this category could obtain benefits under the State Act instead. Post 2012 the same Shipyard worker is out of a job with no way of feeding his family. 

RATINGS: Both Acts provide for disability ratings to be paid for loss of use of the arms, hands, legs, feet, eyes and ears. However, under the Longshore Act, the injury must actually occur to the above listed body parts. However, under the Virginia Act, if the injury is to a different body part, but effects the above listed body parts, a rating can be paid. 

For instance, the physical labor performed by Longshoremen and Shipyard Workers commonly causes rotator cuff tears. This injury is to the shoulder, but often results in limitation in the use of the arm, especially lifting the arm above shoulder level. Under the Virginia Act, the injured worker can recover for loss of the use of the arm. Under the Longshore Act, the injured workers recovers nothing. 

FUNERAL EXPENSES: The cap for funeral expenses under the Virginia Act is $10,000. Under the Longshore Act, the cap is $3,000. It is impossible for a spouse to say goodbye to their loved one for $3,000.

MEDICAL TREATMENT: The Longshore Act has a draconian medical fee schedule. Effective July 1, 2012 one of the biggest orthopedic practices in Hampton Roads stopped taking patients who come under the Longshore Act since they could no longer seek higher payment under the Virginia Act (Virginia adopted a fee schedule effective January 1, 2019, but the amounts paid to medical providers is still higher than what is paid under the Longshore Act).

Many other medical practices have followed the lead of the orthopedic practice. In fact, it is almost impossible to find a neurologist in the Hampton Roads area who is willing to take a Longshore Workers Compensation patient. 

This leaves workers injured on the waterfront with less options for medical care and potentially accepting inferior medical care. 

Clearly, concurrent jurisdiction never provided an injured worker with a double recovery. Instead it is clear that concurrent jurisdiction provided the injured worker with better options from medical care, the ability for distraught families to bury their loved ones without concern for the cost, and allow injured workers to be compensated to permanent loss of body parts.

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