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The Rights of Injured Construction Workers in California

John D. Winer, San Francisco

The Serious Nature of Construction Accident Injuries

Unfortunately, many serious personal injuries and deaths occur at construction sites, usually to employees working at the site but sometimes injuries also occur to non-construction workers who are visiting or passing by.

There are many opportunities for people at a construction site to be injured and California law has developed a series of rules and regulations aimed at protecting construction workers and other people at construction sites.

Sometimes these laws provide an adequate remedy for injured workers and bystanders, but sometimes they do not. A discussion will follow.

B. Who Can Sue for an Accident at a Construction Site.

Although there are limitations placed on the right of construction workers to sue their own employer and other potential wrongdoers that may cause a construction site accident, basically, any person injured (or survivors of someone killed) solely by the negligence of a person or entity other than the employer may be able to bring a case.

A consultation with an attorney who is experienced in construction accident law will be necessary to determine what a plaintiff’s rights are in a given case.

Spouses of the injured plaintiffs can also bring their own lawsuit for loss of consortium damages; that is, damages for the loss of society, comfort and care of the injured plaintiff. See the section on Damages in this article.

C. Owner’s and General Contractor’s Liability to Construction Workers for Injury or Death.

i. What duty is owed by owners and general contractors to construction workers.

a. Duty to construction workers generally.

An owner of property on which work is being done and a general contractor supervising the work may be found liable to workers at the site for failing to use ordinary care to:

  • provide them with a reasonably safe work place.
  • warn of dangers that are not obvious.
  • keep the construction site in a reasonably safe condition.

b. Worker’s compensation preclusions.

1. Employees of general contractor cannot sue their employer.

However, worker’s compensation laws will prohibit an employee of the general contractor from suing his or her employer as long as the employer had worker’s compensation insurance.

This is known as the worker’s compensation “Exclusive Remedy” doctrine. With very few exceptions, an employee cannot sue his or her employer for negligence. Their sole remedy is the receipt of worker’s compensation benefits.

The good news about this doctrine is it is a “no fault” system. Thus, if an employee can prove injury at work, her or she will recover benefits without having to prove fault.

The bad new is that worker’s compensation benefits are atrociously low and do not even begin to cover the damages suffered by an injured worker. A high wage earner, like most construction workers, will receive only a fraction of their salary in worker’s compensation benefits. There is no recovery for pain and suffering and emotional distress damages under worker’s compensation law.

2. Employees of owner cannot sue the owner.

In the construction accident context, an employee of the owner of the construction site cannot sue the owner for the same reasons that the employee of a general contractor cannot sue the general contractor; that is, the worker’s compensation exclusive remedy doctrine.

c. When negligence of the owner or contractor is actionable.

However, employees of the general contractor can sue property owners if they can establish actionable negligence on the part of an owner and the employees of the owner can sue general contractors if they can establish actionable negligence on the part of the general contractor.

The term “actionable negligence” is chosen carefully in the context of a construction accident because, as will be discussed later in this article, there has been some limitation in recent years placed on what is and what is not considered actionable negligence in a construction accident context. See “E” below.

d. Duty of due care of the owner and general contractor extends to hazardous work situations.

Worker’s compensation issues aside, the owner and a general contractor owe a duty to use ordinary care to avoid injuring workers even in hazardous work situations.

e. General contractor and owner do not usually need to warn of obvious dangers.

The liability of a general contractor or owner cannot be based solely on the failure to warn a worker of a dangerous condition that was, or should have been obvious to the worker.

However, a general contractor or owner may be liable for failing to correct a dangerous condition of which, in the exercise of ordinary care, it knew or should have known even if the danger was obvious to workers at the site — if it was foreseeable that the danger, despite its obviousness, could cause injury, as when the necessity of the job requires workers at the site to encounter the potential danger.

f. The owner or contractor may not have a duty to warn of obvious danger, but may have duty to correct it.

The owner or general contractor may not have a duty to warn of an obvious danger but still may have the duty to correct it under certain circumstances.

g. Owner’s or general contractor’s duty maybe reduced if complete control is given over to a subcontractor.

The amount of duty of ordinary care that an owner owes at a job site may be reduced or eliminated if the owner gives complete control and supervision over to a subcontractor.

However, liability for a dangerous condition may still be imposed on an owner or general contractor who:

  • created the condition personally or through an employee.
  • had notice of the condition or by reasonable inspections should have discovered it, and had sufficient control to take reasonable safety measures
  • Knew or should have known that a subcontractor’s work had created a type of dangerous condition that may reasonably be expected to occur again unless appropriate precautions were taken.

ii. Violations of safety statutes and regulations.

a. Statutes and regulations may form the basis of liability against owners and general contractors.

A basis for liability against a construction site owner or general contractor may be the failure to fill a specific duty relating to the safety of workers imposed by statute, local ordinance or regulation.

b. Non-delegable duty.

If a duty is imposed on a general contractor by statute, it is often “non-delegable” — this means that the general contractor remains liable to the injured person even when the contractor has “delegated” or given over responsibility for the work, or particular aspects of workplace safety, to an independent contractor.

Not infrequently on construction projects, a general contractor will turn over almost complete control of an aspect of a construction project to a subcontractor. However, the law recognizes that in terms of the responsibility to follow statutes and regulations, a contractor remains responsible for job site safety.

c. CAL/OSHA regulations are now admissible into evidence.

Fortunately for plaintiffs, they are now, because of new legislation, allowed to introduce evidence of Labor Code safety provisions and safety orders in personal injury and wrongful death cases. This law has been changed to make CAL/OSHA safety regulations admissible into evidence.

In the rare situation in which an employee can sue an employer, such as when the employer does not purchase worker’s compensation insurance or plaintiff is able to establish a “dual employment” situation, the CAL/OSHA violations can be entered into evidence at the time of trial.

Further, an expert witness has always been able to testify on the “custom and practice” in the construction industry even though that custom and practice was based on a Labor Code safety violation.

d. Special duties imposed by contracts.

In addition to State and local statutes and regulations, it is important for a plaintiff in a construction accident case to obtain the actual contracts between the owner and the general contractor and the general contractor and the subcontractors.

These contracts may impose responsibility for the safety of workers. For instance, an employee of a subcontractor may be able to sue a general contractor on the basis of a contract between the owner and general contractor that states that the general contractor cannot delegate job safety responsibilities to the subcontractors.

D. Responsibilities of the Owner and the General Contractor to People at the Construction Site Who Are Not Construction Workers.

An owner or general contractor owes a duty of ordinary care to every person at a construction site, even uninvited persons if their presence is foreseeable.

The key is whether the owner or general contractor exercised “control” over the construction site. If they do, then they owe a duty of ordinary care to everyone other than their own employees. This would include passersby, inspectors, doctors called to the scene, children playing at the construction site if it is reasonably foreseeable that they will be present, and any other person.

E. Liability of Owners for the Negligent Acts of General Contractors and Liability of Owners and General Contractors for the Negligent Acts of Subcontractors.

i. Determining liability amidst the various contractors and owners at a construction site is confusing and uncertain.

One of the most confusing and quickly changing areas of personal injury law involves a determination of the responsibility of who is responsible for construction site accidents.

ii. Unlike employer/employee relationships, the general rule is that someone who hires an independent contractor is not responsible for that contractor’s negligence.

The general rule is that someone who hires an independent contractor to do a task is not liable for the independent contractor’s negligence.

In other words, usually under the law an employer is responsible to other people if the employer’s employee acts negligently. This is based on the public policy reason that the employer should bear the risk of their employees’ negligent acts that harm other people. This is known as “vicarious liability,” i.e., liability imposed on the employer even though the employer did nothing wrong.

iii. Vicarious liability law generally does not apply to a defendant who hires an independent contractor.

The law of “vicarious liability” frequently does not apply when an employer such as a general contractor at a job site hires subcontractors to perform work instead of using his own employees. Thus, the general rule, to which there are many exceptions, is that the owner or general contractor at a construction site is not ordinarily liable for accidents:

  • caused solely by the operation of a subcontractor over whom the defendant had no control or supervision.
  • caused by conditions outside the scope of the owner’s or general contractor’s own work or beyond his or her control.

iv. Exceptions in which the hirer of independent contractor can be found liable.

However, there are many exceptions to this rule that apply to construction site accident. The hirer of an independent contractor or subcontractor may be liable for the hirer’s own negligence in:

  • failing to inspect the work after completion.
  • hiring an incompetent or careless contractor.
  • giving orders or directions or otherwise exercising any retained right of control.

v. Independent contractor must truly be “independent.”

Further, sometimes the plaintiff can establish that the negligent person was not actually an independent contractor but an employee of the defendant based on the hirer’s right to control the manner in which the negligent person works and other factors.

vi. Unlicensed “independent contractor” presumed to be an employee of the hirer.

A key rule in construction accident cases is that a person who does not have a required contractor’s license or the employee of such a person is conclusively presumed to be an employee of the hirer.

Thus, an owner who hires an unlicensed general contractor or a general contractor who hires an unlicensed subcontractor will be held responsible for the unlicensed contractor and the employees of the unlicensed contractor’s negligent acts, just as if they were employees.

vii. “Peculiar risk” doctrine.

a. The former rule protected construction workers.

One of the key exceptions to the rule that a contractor was not normally responsible for the negligent act of subcontractors used to be the “peculiar risk” doctrine. That doctrine stated that a person who hired an independent contractor to do work likely to create, during its progress, a peculiar unreasonable risk of harm to others unless special precautions were taken was liable for harm caused by:

  • absence of those precautions, if the hirer failed to provide for them in the contract or otherwise.
  • the contractor’s failure to exercise reasonable care to take the precautions whether or not provided for in the contract.

b. In recent years, the “peculiar risk” doctrine has been severely limited.

Unfortunately for injured workers, the California Supreme Court, in recent years, has severely limited this doctrine which was sometimes one of the only ways that an injured worker could get out of the worker’s compensation system and sue a negligent owner or general contractor.

The California Supreme Court has held that in most cases, the peculiar risk doctrine no longer provides a basis for imposing liability on the hirer of an independent contractor for injury to the independent contractor’s employee. The only major exception to the California Supreme Court’s rulings may be where the independent contractor retains control over the operative details of the subcontractor’s work.

c. Why was the “peculiar risk” doctrine so important?

The reason why the peculiar risk doctrine was so important to workers was that frequently owners and general contractors would allow dangerous practices of subcontractors to occur on job sites. In a predictable fashion, one of the subcontractors would be injured by the high risk, dangerous practice of its employers. Because the exclusive remedy does not allow the employee of the subcontractor to sue the subcontractor, the only possible remedy left to the injured worker to receive anything close to full compensation for his or her injuries was to be able to sue the owner or general contractor who had allowed the dangerous practice to take place.

The Supreme Court now, in most circumstances, has prevented workers in this situation from obtaining full compensation for their injuries by all but eliminating the “peculiar risk” doctrine.

d. “Peculiar risk” doctrine still protects non-employees who are injured.

However, the peculiar risk doctrine still imposes “vicarious” liability on the hirer of an independent contractor for injury to a non-employee, such as a child injured by burning debris, a bystander or other visitor to a job site.

In those cases, “peculiar risk” maintains its original definition of a risk that is of the type ordinarily encountered and the particular type of work being done, not something strange or unusual.

F. Compensatory Damages in Construction Accident Cases.

In a construction accident case, plaintiff can recover for past medical expenses, future predicted medical expenses, past wage loss, future predicted wage loss and for past and future pain and suffering.

The medical expenses are determined by the testimony of physicians or other health care providers. Frequently, an economist or an expert in the industry determines the amount of future wage loss; however, no expert can testify to the value of pain and suffering.

Pain and suffering is typically the most significant element of a plaintiff’s damage and it includes emotional distress. Contrary to popular belief, there is no formula for pain and suffering awards and it varies greatly from case to case depending upon the location of the case, the seriousness of the injury and how well the case is presented.

G. Claim for Loss of Consortium.

A plaintiff’s spouse can also sue and recover damages for ‘loss of consortium.” A spouse is allowed to recover damages for the loss of society, comfort and care that result from the injured spouse’s unavailability due to their injury and having to watch the plaintiff suffer. In order to recover these damages, a spouse must be named as a party to the lawsuit and must have been married to the plaintiff at the time of the injury.

There are advantages and disadvantages to filing a loss of consortium claim that should be discussed with an attorney before filing.

H. Punitive Damages.

Under California law, if a plaintiff can prove that the conduct of the wrongdoer was fraudulent, malicious or despicable, he or she is entitled to recover punitive damages which are intended to punish the wrongdoer and provide an example for the rest of society. The focus of this type of case is generally on the wrongdoing of the defendant as opposed to the injury to the plaintiff. The amount of punitive damage will vary depending upon the heinousness of the defendant’s misconduct and its economic status. The law recognizes that large companies have to pay more money in punitive damages to be adequately punished than small companies or individuals. In motor vehicle cases, punitive damages are most frequently awarded against drunk drivers.

I. How Soon Must a Case Be Brought After a Construction Accident?

Although there are a few exceptions, generally speaking in California a case for serious personal injury must be brought within one year of the date of the accident/incident. In rare cases, that time period is extended to one year from the date of the discovery of a wrongdoing and/or an injury. However, be careful. If the case is against a public entity, the claim must be brought within six months of the date of the accident. Except in medical malpractice cases and cases against public entities, minors have until their 19th birthday to bring a case.

J. Considerations in Evaluating Cases for Settlement.

i. Many different factors are taken into consideration when evaluating settlements.

There are many, many factors which are utilized when evaluating a case for settlement. The perception that many of the public have that a case settles for three times the medical bills and wage loss cannot be further from accurate. There are cases that settle for millions of dollars in which there are no medical bills or wage loss and there are cases that settle for a few thousand dollars in which there are hundreds of thousands of dollars of medical bills and wage loss. Following are some of the factors that are relevant to evaluating the case for settlement purposes:

ii. Liability.

The clarity of liability (i.e., fault) in the case is a critical settlement factor.

In a case in which liability is unclear or the plaintiff has a substantial chance of losing, the settlement value of the case has to be reduced significantly to factor in the plaintiff’s chances of losing.

Theoretically, if the value of an injury claim is $100,000, but plaintiff only has a 50/50 chance of winning, a $50,000 settlement may be appropriate. However, plaintiffs must always realize that cases against large defendants or in cases in which the defendant is insured, that the plaintiff has a lot more to lose than the defendant. In the example above, if the insurance company turns down a $50,000 demand and the plaintiff wins $100,000, payment of an additional $50,000 will mean very, very little to a large insurance company or corporation. On the other hand, if the plaintiff turns down the insurance company’s $50,000 offer and wins nothing at trial, it could create a devastating financial blow in which the plaintiff is unable to pay for his or her bills.

iii. Comparative fault of the plaintiff.

If a plaintiff is found to be partially at fault for causing his or her own injury, then their potential jury award is reduced on the basis of their percentage of fault. In other words, if a case were to go to trial, and plaintiff were to receive a $100,000 verdict, but was found to be 25% at fault, the plaintiff’s verdict would be reduced to $75,000. Thus, when settling a case, plaintiff should reduce his or her expectations of a settlement by the likely finding of percentage of fault that would occur if a case were to be tried.

iv. Likely jury verdict value of the case.

In cases in which insurance policy limits are not an issue, most good attorneys attempt to settle the case based upon what a jury would be likely to award if the case went to trial.

Determining what a jury will award in a given case is more of an art than science; however, reasonable estimates can be made based upon what jurors have awarded in similar cases in similar venues (i.e., locations). Most verdicts are reported in “jury sheets” that lawyers read and utilize when attempting to assess the value of any particular case.

v. Aggravated liability.

In cases in which a jury is likely to get angry at a defendant for misconduct that was something more than negligent, it is known that jurors are likely to “spike” their verdict and award more money for a plaintiff’s injury than they would if a defendant’s misconduct was merely negligent.

Aggravated liability situations, such as a drunken defendant or a defendant who intentionally hurts a plaintiff will increase the risk to the defendant of a large jury award and this should be taken into consideration in settlement.

vi. Punitive damage exposure.

If the defendant’s misconduct is so bad that there is a risk for punitive damages, i.e., the jury awarding damages specifically to punish the defendant, this should become a major factor in settlement negotiations. A potential award of punitive damages is complicated by the fact that under the law, the insurance company is not allowed to pay an award for punitive damages; however, normally, the defendant, through a personal attorney, attempts to apply pressure on the insurance carrier to pay more in settlement so that the defendant will not be exposed to the punitive damage risk.

vii. The character and credibility of the parties.

A plaintiff’s case is worth more if he or she is likeable and believable. It is known that jurors will award more money to people that they like and believe than people whom they dislike and don’t believe.

To a lesser extent, this is also true for defendants. A likeable or believable defendant is likely to fare better in a lawsuit than someone with the opposite traits.

viii. The extent of the injury.

Theoretically, the more serious an injury, the greater should be the value of the plaintiff’s case.

ix. Objective evidence of injury.

Injuries that can be visualized or that are able to be demonstrated by radiographic evidence such as x-rays, MRIs, CAT scans or other scientific tests, will normally result in higher settlements than injuries which depend upon the believability of the plaintiff to prove.

There are many injuries which may have severe consequences for the plaintiff which are not diagnosable by objective tests. This can include severe back problems, headaches and pain anywhere in the body. Experience has shown that jurors are hesitant to award large damages in cases in which there is no objective evidence of injury; thus, the settlement value of any case is increased by objective evidence of injury and decreased by the lack of it.

However, a credible plaintiff can sometimes overcome the lack of objective evidence of an injury and this must also be taken into consideration in the right case.

x. Past and future medical bills of the plaintiff.

As long as a plaintiff can establish that past medical expenses and likely future medical expenses are reasonable and related to their injuries, the bills will be an important consideration in settlement.

However, the defense will generally claim some amount of overtreatment and, thus, some portion of the medical bills should be excluded from settlement consideration. Further, the defense will argue that plaintiff will be unlikely to need or have the claimed future treatment and/or the future treatment would not be related to the subject incident.

xi. Past wage loss and future wage loss.

Wage loss is another important consideration in evaluating a claim as long as plaintiff can establish that her or she was reasonably off work or will be reasonably off work due to the subject incident. The defense will likely take the position that the amount of the wage loss should be discounted because plaintiff should have been back to work sooner and, in the case of future wage loss, the defense will claim that plaintiff could be doing some type of work which would pay them as much or almost as much as the work they were doing before the incident.

Also, for plaintiffs who are self-employed or do not have a strong consistent earning history before the accident/incident, it can become very difficult to establish a wage loss claim.

xii. Is the injury permanent.

In cases in which plaintiff has a permanent injury and some objective evidence of that injury, there will likely be a higher settlement value because the case will have more jury appeal.

xiii. Venue (where the claim will be tried).

It is beyond question that cases tried in certain locations, particularly urban locations, result in much higher verdicts than cases tried in more rural counties. This is a factor that must be taken into consideration in settlement.

xiv. Policy limits and defendant’s assets.

No matter how severe the injury, the plaintiff’s ability to recover damages against defendant will be limited by either the defendant’s policy limits or the personal assets of the defendant.

However, in cases involving motor vehicles, the plaintiff may have his or her own uninsured or underinsured motorist insurance which would provide additional coverage for the plaintiff’s injury and allow the plaintiff to receive further compensation in a settlement with their own insurance carrier.

xv. Target defendants.

Even though jurors are not supposed to consider the wealth of a defendant or whether or not the defendant is a corporation in their verdict, they are far more likely to make larger awards against large companies than they are people who they perceive to be middle class or poor. So this becomes another important settlement consideration.

xvi. Reputation and ability of attorneys.

The claims representative or defense attorney will report to the insurance carrier or defendant the ability of the plaintiff’s attorney and the likelihood that the attorney will try a case and try it well.

In situations in which the defense believes that the plaintiff’s attorney will not be willing to take the case to trial, there is little incentive to offer a significant amount of money in settlement.

On the other hand, if the defense believes that a plaintiff’s attorney will not only go to trial, but will receive an optimum verdict, the defense’s risk is increased and thus the settlement value of the case is increased.

By the same token, plaintiffs must also take into consideration the reputation and ability of the defense attorney. If the case is against a good defense attorney, plaintiff will likely receive less money from the jury; thus, the settlement value of the case, to some extent, is decreased.

xvii. Expense of litigation.

The expense of litigation should also be considered in settlement. There are some cases which, if worked up properly, could result in the expenses actually being higher or almost the entire amount of an eventual settlement or verdict.

Some insurance companies and corporations are cost conscious and will take into consideration the expense of proceeding in the case versus early settlement.

However, just because a case may cost the defense $200,000 to litigate does not mean that in a case they otherwise evaluate as being worth $25,000, they are going to offer the plaintiff $200,000 in settlement.

Rather, in the above example, it may cause the corporation or insurance company to raise their offer five or ten thousand dollars or to try to settle the case early for $25,000 before expenses are actually incurred. Corporations and insurance companies are loathe to make offers of settlements based on the cost of defense because of a concern that they will be seen as an easy target for plaintiffs.

K. Special Considerations in Litigating Construction Accident Cases.

i. Attorney handling construction accident cases must be familiar with the changing law and common contractor and construction practices.

Obviously, because of the complexity of the law, it takes a great deal of expertise to litigate construction accident cases.

When representing a construction worker, the biggest challenge is usually establishing that someone other than the injured worker’s employer was responsible, or at least partly responsible, for the worker’s injury.

This requires knowledge of the usual operation of construction sites; the relative responsibilities of the owner, general contractor and various subcontractors to each other; and a knowledge of construction accident law.

ii. Hiring the right experts.

Investigation in a construction accident case will be critical and a plaintiff will generally want to consider hiring an expert witness to help focus the investigation.

There are many types of experts who can testify in construction accident cases. They include safety experts, construction practices experts, people with expertise in a particular trade, accident reconstruction experts, human factor experts, as well as an economist and other damage experts.

iii. Understanding the relative responsibilities between the contractors and the trades to maximize recovery for the plaintiff.

Construction accident cases also, generally, involve complex issues regarding the relative responsibility of the various potential defendants including the owner, general contractor and other subcontractors to pay for the plaintiff’s injury.

Under Proposition 51, a wrongdoer is responsible for paying 100% of the plaintiff’s economic losses, regardless of the degree of fault, but is only responsible for paying general damages, i.e., damages for emotional distress and pain and suffering, up to its percentage of fault. Thus, an attorney handling a construction accident case, must litigate the case in such a way that increases the non-employer defendant’s degree of fault, and maximizes the plaintiff’s recovery for economic losses.

iv. Investigation in a construction accident injury or death case.

The investigation of a construction accident case should begin before the CAL/OSHA report is finalized, which may take several months. It is wise for plaintiff’s attorney to conduct whatever investigation can be performed before the CAL/OSHA report is completed.

Generally speaking, the plaintiff’s co-employees, employer and insurance company for the employer should be willing to aid a plaintiff in the investigation, especially since the employer’s insurance carrier can potentially “subrogate” or “get back” some of the benefits it paid to the plaintiff from other responsible parties. Each contractor and subcontractor at the scene will generally conduct an investigation and injury report, and plaintiff should attempt to obtain all of these reports in the course of litigation.

v. Settlement of a construction accident injury or death case can be complex due to worker’s compensation liens.

The settlement of construction accident cases can also be quite complex. Because, in any case in which there is an injured worker, there will be a worker’s compensation case, the interaction between the worker’s compensation case and the personal injury case against the third party defendants becomes critical.

vi. Understanding relationship between a plaintiff’s financial recovery and a worker’s compensation lien.

The worker’s compensation carrier will generally “intervene” or file a “lien” on the plaintiff’s personal injury or death case, wanting to get back all of the money that it paid to the plaintiff from the other defendants. Unless the plaintiff can “defeat” the claim of the worker’s compensation carrier, then the worker’s compensation insurance carrier gets its money back “off the top” of a verdict before the plaintiff recovers anything.

This could significantly cut into the plaintiff’s recovery. In other words, if a plaintiff is awarded $500,000 in damages from a jury, however the worker’s compensation insurance carrier is entitled to get back $300,000, the plaintiff’s net recovery after attorney fees and expenses can be minimal.

vii. Reducing or waiving liens.

Therefore, attorneys who are sophisticated in handling construction accident cases attempt to obtain a settlement in which the employer’s insurance carrier significantly reduces its lien or waives (i.e., gives up) its lien.

This can be done in the right case if the plaintiff can establish a significant amount of employer negligence, which can eliminate a lien; a significant chance of the plaintiff losing, therefore the worker’s compensation carrier should significantly reduce its lien to help effectuate the settlement because some reimbursement to the worker’s compensation carrier is better than nothing; or if the worker’s compensation carrier is willing to reduce or again, waive, its lien if plaintiff excuses it from paying for future medical and disability benefits.

viii. The crippling effect of “credits” to the worker’s compensation carrier.

An important aspect of liens that is not understood by many attorneys and plaintiffs is that unless the plaintiff’s attorney can establish a significant amount of employer negligence, or the plaintiff’s attorney makes a special “deal” with the insurance carrier, the carrier gets a “credit” of the net amount of the plaintiff’s recovery, vis-a-vis settlement or trial.

A “credit” means that the insurance carrier is not responsible for paying any future benefits to the plaintiff until plaintiff “uses up” benefits equal to the amount of plaintiff’s net recovery, i.e., recovery after attorneys fees and costs.

In other words, if a plaintiff nets $50,000 in a case, unless a special settlement is achieved with the worker’s compensation carrier, the worker’s compensation carrier is not responsible for paying any future benefits other than vocational rehabilitation until the plaintiff incurs $50,000 of medical expenses or worker’s compensation disability payments.

ix. Complexity of construction accident cases requires retention of an attorney.

Thus, construction accident cases are extraordinarily complex; however, if a construction worker has received a serious injury, they should seen the advice of an attorney before deciding how to proceed.

This article was authored by John D. Winer. Winer, Burritt & Scott, LLP, Oakland Personal Injury Attorney LLP

specializes in catastrophic physical, psychological injury cases and wrongful death cases. The firm handles a significant number of catastrophic injury, traumatic brain injury, elder abuse, sexual abuse and harassment, post traumatic stress disorder and psychotherapist abuse cases. Please visit for more information or for a free online consultation.

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