Aylin Poulton | Whirlwind Steel Buildings & Components | April 5, 2016
For 2014, OSHA reported that there were 4,251 worker fatalities in private industry. Of those, 874 were in construction. In short, one in five workers who died on the job in 2014 worked in construction. That is nearly 17 deaths per week or more than two per day.
In addition to fatalities, the OSHA report from that same year shows that there were over 200,000 non-fatal construction site injuries in the industry. That is over 3,800 non-fatal injuries per week or over 500 construction site injuries per day.
Imagine how much this could represent in insurance claims. Where are all these deaths and injuries coming from? What does an employer need to file a claim?
The Construction Fatal Four
The four leading types of death in construction are caused by:
- Falls
- Electrocutions
- Strikes by objects
- Getting caught in or between equipment or materials
Falls are by far the largest cause of workplace fatality in construction, accounting for nearly 40% of all construction deaths. In addition, all four are largely the cause of non-fatal injuries that result in missed work or the need to transfer to another type of job.
Violations of Standards
Death and injury are not causes, in and of themselves. They are often the consequence of violating safety standards set forth by the Occupational Safety and Health Administration and under local law. Citations for violating fall protection standards, failing safety standards for equipment use, and neglecting to develop and distribute a hazard communication plan all play a role in fatalities and injuries in an already dangerous profession.
However, liability does not always lie with the contractor or construction company.
Placing Liability
Determining liability and whether a claim will be compensated requires taking into account the prevailing standards as well as identifying potential parties that may hold responsibility in the case. There are a number of individuals involved at a construction site:
- The site’s landowner
- Designers and engineers
- Contractors, including general, prime, and subcontractors
- Construction managers
- Equipment and material suppliers
Of course, there is also the injured party to consider, as well.
Each has a duty and a legal responsibility that will be scrutinized during the course of the investigation into each accident. Construction is a complex project; with so many different people involved, insurance claims and legal action that stem from an accident in this industry is also complex.
Typically, the chain of command is used to help determine responsibility, depending on how the workflow is set at a particular jobsite. Just because work has been delegated doesn’t absolve the delegator and doesn’t automatically pin liability on the delegate. According to FindLaw, assessment of responsibility includes determining “…the extent of a potential party’s control over the premises on which the work is being done and the degree of their control over the work itself.”
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OSHA Foundations
The Occupational Safety and Health Act of 1970 safety regulations have been adopted as the basis for state and local regulations in most of the United States. Further regulations may be put into place by the state or municipality as well as by the property owner or general contractor. However, depending on the location of the project, all that may need to be shown to prove negligence is that an OSHA regulation was violated and an injury resulted.
Worker’s Compensation
Worker’s compensation is provided as an alternative for injured workers who, without worker’s comp, would need to file a lawsuit against the employer for compensation. This can be an expensive proposition and out of the financial reach of many employees.
Worker’s compensation covers hospital bills, treatment, diagnosis, and sometimes disability. It will also cover physical therapy or other rehabilitation.
A worker’s compensation system is available in some form in each of the 50 states. Depending on the rule of the particular system, an employee injured on the job is “…entitled to compensation for the injuries, regardless of employer negligence,” according to AllLaw.com. Worker’s comp is a no-fault system and may be an injured worker’s only coverage.
The Social Security Administration reports that the weekly compensation rate varies from a maximum of $468.63 in Mississippi to a maximum of $1628.00 in Iowa (as of 01/01/16 and 07/01/15, respectively).
What injuries are covered by worker’s compensation? Just about all of them, even if the injury was the fault of the worker. However, if a worker needs or wants to obtain more than worker’s compensation provides many (if not most) worker’s comp systems preclude lawsuits against the direct employer. At this point, the worker can sue a third party, such as an equipment manufacturer for defective equipment causing the injury.
What If the Injured Party Is Responsible?
If an injured worker is found to be responsible, it can lighten the employer’s liability or shift it entirely to the worker depending on what occurred.
For injuries that occur due to improper use of tools, failure to follow safety regulations, and inadequate training, the worker generally shares in the liability. However, machinery misuse can be blamed on operator error, which may shift sole liability to the worker.
It will depend on the insurance contract whether a claim will be honored under any circumstance. While responsibility is often shared between any number of individuals, it depends heavily on the depth of involvement and the actual cause of the injury whether a claim can be filed and whether the accident is covered beyond worker’s compensation.
*From http://injury.findlaw.com/workers-compensation/construction-injury-overview.html. Accessed 3/30/2016.