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How big is the problem? A study published in 2011 summarized the state of workplace injury and illness:
- 23,000 on-the-job injuries in the United States every day
- Annually, that amounts to 8.5 million injuries
- Total cost of those injuries is estimated at $192 billion
- Almost 2.5 million of those injuries resulted in some missed work days
- 5,000 of those injuries resulted in death
Those death figures were just from specific, discrete injuries. When deaths from workplace-caused illness were added in, the total number of work-related deaths exceeded many other causes that get considerably more media attention:
- 59,102 deaths from occupational illness and injury
- 43,945 deaths from motor vehicle crashes
- 40,970 from breast cancer
- 29,093 deaths from prostate cancer
- 18,361 deaths from and homicide
After adding the direct medical costs of occupational injury and illness to their indirect costs, the study found that the combined total was “at least as large as” the costs associated with cancer. The states’ workers’ compensation programs combined covered only about a quarter of those costs.
Recovery for Workplace Injuries; Workers’ Comp Barrier
Workplace injuries are, like injuries in all other contexts, caused by something. In many cases, that something is negligence. Unlike in other contexts, injured workers are, for the most part, barred from suing their employer for negligence, by the explicit terms of the state’s workers’ compensation law.
Workers’ compensation laws usually provide that recovery under that program is the sole remedy that an injured employee has against the employer, and Alabama follows this “exclusive remedy” rule. Any worker who toils for an employer subject to the state’s workers’ compensation law—and most workers do–and who is injured while working, can’t sue the employer for negligence and recover tort damages. You get to collect workers’ comp benefits, and as far as the employer’s liability goes, that’s the end of it.
Unfortunately, the workers’ compensation benefits frequently don’t cover the injured employee’s actual losses. You can’t sue the employer; is there something you can do?
The answer can be very tricky and technical. It helps a lot to have the assistance of an experienced workplace injury lawyer to guide you through hazy line that separates the workers’ compensation world from the tort lawsuit world where you may obtain full compensation for our losses.
Willful Conduct Exception to Exclusivity
Alabama’s workers’ compensation law provides a willful conduct exception to the exclusive remedy rule. The law specifically says that an employee who suffers injury or death “shall have a cause of action” against any of the employer’s other employees, agents or officers whose “willful conduct” was the cause of the injury or death. The term “willful conduct” is generally defined in the law to include:
- A purpose, intent or design to cause another person injury
- Willfully and intentionally removing a machine safety guard or device that the manufacturer has provided, if the person removing it knows that injury or death would be the likely or probable result (provided that the removal did increase the danger and wasn’t done for repair or improvement)
- A fellow employee’s intoxication if that employee’s wrongful conduct was the proximate cause of the injury or death
- Willfully and intentionally violating the employer’s written and specific safety rule after written notice
Third Party Suits Are Also Allowed
Alabama law does allow injured workers or their dependents to sue any negligent party other than the injured person’s employer, as long as the negligent party also caused the injury. These are third party, suits in the sense that they involve someone in addition to the employer and employee.
In essence, if the injury is work-related, but there is some person or entity other than the employer and fellow employees who was at the work site, or whose products or property was at the work site, and is legally responsible for causing the injury, the injured worker can sue for whatever tort damages are available under the circumstances. Those damages could, under some circumstances, include pain and suffering, mental anguish, loss of consortium, and many other elements of compensation unavailable in workers’ comp proceedings. And there is a right to a jury trial.
The very nature of a third party suit means that these lawsuits will primarily be available for injuries at work sites where multiple entities are present. Common examples of third parties include:
- Subcontractors at construction, industrial and similar sites. A subcontractor who causes an injury could face legal action from the victim in a personal injury claim. The injured employee can secure workers’ compensation benefits and then take legal action against the third party for additional compensation, since filing a lawsuit against an employer for negligence is not an option in Alabama.
- Owners of property on which construction and repair work are being performed. A private property owner has an obligation to legal visitors to the property to ensure no safety hazards exist that could cause injury. If such hazards exist, the property owner must warn visitors about them if they are likely to encounter those hazards during their time on the property. Construction and repair work on private property can be dangerous, but this does not exempt the property owner from addressing known issues that can cause injuries. A property owner who fails to warn a contractor or other worker about a known safety issue may face liability under premises liability law.
- Visitors to work sites. Any visitor to a job site who causes an injury to an employee could face a third-party lawsuit from the victim.
- Manufacturers of equipment, tools, and machinery used at the work site. Product manufacturers face liability if their products are defective or malfunction during normal use and cause injury to operators. The injured victim will need to file a product liability claim against the manufacturer and prove that the product in question was defective and the defect caused the victim’s injuries. A product may be defective by design, by production, or by marketing, if the manufacturer inaccurately represented the product in marketing materials or failed to include adequate instructions for safe use of the product.
- Negligent drivers. If an employee is delivering supplies to a job site or otherwise driving during the course of his or her job duties and another motorist causes an accident, the employee would still qualify for workers’ compensation benefits since the accident occurred within the scope of work. However, the injured employee could also file a personal injury claim against the negligent driver for additional compensation.
- A local government or municipality. If the public agency responsible for maintaining an area of a job site allowed a dangerous element to persist in the area, they may face legal action if the dangerous element causes an injury. Filing legal action against a government entity works very differently than filing a claim against a private individual. Claimants must meet very strict filing deadlines, contend with a shorter statute of limitations, and typically face restrictions as to how much compensation they can claim.
FILING A THIRD PARTY CLAIM
Whether you intend to file legal action against a negligent driver in a personal injury lawsuit or file a product liability claim against a defective product manufacturer, it is essential to work closely with your attorney to gather the evidence necessary for building a strong case. You will need evidence not only to prove that the defendant in your case was indeed negligent and responsible for your damages, but also proof of the extent of your damages.
If you deal with insurance at all during your case, be sure to retain copies of any and all correspondence with insurance agents. It’s also wise to have your attorney handle speaking with insurance companies on your behalf, as insurers will be less likely to push back against a claim with legal representation. You should also keep copies of all your workers’ compensation documentation, medical reports, and invoices for any medical expenses or other out-of-pocket expenses resulting from your accident. This evidence will help you establish a link between the defendant’s negligence and your damages and provide the jury with a clear outline of the extent of your damages.
While economic damages resulting from your work injury will receive 1:1 compensation, non-economic damages like pain and suffering and loss of enjoyment of life are a bit more difficult to calculate. Different courts use different methods for calculating non-economic damages, but they are generally proportionate to the plaintiff’s medical expenses. For example, if a plaintiff incurred $50,000 in medical expenses due to a serious work injury, he or she could expect $75,000 or more in pain and suffering compensation.
Suits for Industrial Accidents/Injuries
Industrial accidents in the modern world can be truly catastrophic, like the toxic incident in Bhopal, India, which caused the deaths of thousands. While those incidents generate most of the headlines about industrial accidents, most accidents at industrial sites are of a smaller scale. These smaller accidents often involve a single worker at the site, and often involve ordinary accidents like falls and being hit by heavy objects.
Industrial work sites often have employees of more than one employer on the site at a given time. For example, a chemical treatment plant may have a constant flow of truck deliveries from other companies, occasional visits from manufacturing representatives to check the calibration of machines supplied by the manufacturer, and a constant presence of security officers employed by a different company. If an employee of any one company is injured by the actions of an employee of any of the other companies, or by a defective product manufactured by someone other than the immediate employer, a third party suit can be brought.
Needless to say, untangling the various employment relationships at an industrial work site, and establishing exactly who and what caused the injury, is usually a complicated process that involves more than one field of law. Having an attorney with considerable experience in Alabama workplace injury cases can be invaluable. Call Drake Law Firm today for a free consultation.