The simple answer to this question is yes, but only in very limited circumstances. One cannot generally sue their employer for injuries that happen at work. There are, however, some exceptions where an injured worker may “sue” to be compensated for a workplace injury. Massachusetts’ workers’ compensation laws provide that if one is injured at work, then the injured person’s “exclusive remedy’ against their employer is compensation through the workers’ compensation system. The Massachusetts workers’ compensation system, much like those workers’ compensation systems in other states, provides only limited compensation for work injuries. In stark contrast, civil lawsuits for injuries allow an injured person to pursue compensation for 100% of past and future wage loss, 100% of cost of medical expenses (subject to the insurer’s lien), and pain and suffering. Many times, an injured worker is surprised to hear that they are limited to workers’ compensation benefits as a result of their work injury. Because the settlement value of civil lawsuit generally far exceeds the settlement value of a workers’ compensation claim, it is always necessary to investigate a work injury to determine whether a civil lawsuit may also be pursued. A few situations where an injured worker may be able to pursue additional compensation through a civil lawsuit include:
In re Kelbe’s Case, the Appeals Court of Massachusetts presented a decision that provides an adequate summary of the “going and coming” rule in worker’s compensation cases, which generally disallows monetary recovery for injured employees. The court’s opinion began with a review of the general rule, which states that workers’ compensation is not usually available to compensate employees who are injured during the course of travel to and from work. However, injuries that occur on the employer’s premises are compensable, as are injuries that occur where the employer owns the right of passage, such as a parking garage. Other exceptions to this general rule include, when the employee’s regular duties involved traveling away from the employer’s premises; when the accident occurred the employee was traveling home from an off-site work-related meeting or social event for the employer; or when the vehicle the employee was in at the time of the accident was provided by the employer for the employee’s travel. Continue reading
Beginning April 1, 2015 Massachusetts will extend employment protections to domestic workers. The Domestic Workers Bill of Rights will create new legal obligations for individuals or families who employ domestic workers including nannies, housekeepers, caregivers, and other domestic workers. The new law will create a number of new rights that will improve conditions for domestic workers such as a statutory right to privacy and how a live-in domestic worker may be terminated. Also, the Domestic Workers Bill of Rights definitively clarified that some existing state laws do extend to domestic workers. Included among existing Massachusetts laws that will extend to domestic workers are Massachusetts’ workers compensation benefits. Continue reading
The new year brought new changes to the United States Department of Labor, Occupational Health and Safety Administrations’ (“OSHA”) work injury reporting requirements for employers. Prior to January 1, 2015, employers were required to report fatalities occurring at the workplace and incidents that required three or more employees to be hospitalized. Beginning on January 1, 2015, OSHA now requires employers to report any injuries or illnesses that occur at the workplace and require only one employee to be hospitalized. The employer of the injured worker must report the work injury or illness to OSHA within 24 hours of their first knowledge of the hospitalization. Continue reading
A recent Middlesex Superior Court decision in the case of Anderson v. AIG, which ordered AIG to pay over $7 Million to a lawyer who was struck by a negligently operated bus (which was insured by AIG), exposes the lengths a large, wealthy and powerful insurance company will go to in an attempt to deny full and fair compensation to an injury victim and his family. In the Anderson case, AIG and its attorneys were found to have fraudulently created a fictitious version of how Mr. Anderson’s accident occurred in order to decrease its payout on the claim and save the massive insurance company a few million dollars. You may recall that AIG, whose 2013 net income was over $9 Billion dollars (yes, billion), is the same AIG that received an $85 Billion bailout from our taxpayers (which includes Mr. Anderson, the victim of this accident and victim of AIG’s fraud). Anyone other than plaintiff’s attorneys who routinely represent those harmed by the careless actions of others in litigation against large, powerful insurance companies like AIG, may be shocked by AIG’s conduct which was exposed to the court in this case. Those of us who routinely handle these cases are not shocked by the findings, but rather relieved that AIG’s fraud was exposed for all to see. Continue reading
Often times unsafe working conditions at construction sites cause injuries to construction workers who are employed at the project. However, a recent jury verdict awarding over $18 Million to the operator of a motor vehicle who was caused to lose control of his vehicle, crash and suffer injuries resulting in partial paralysis highlights the dangers that unsafe construction sites can pose to not only the construction workers, but also to the entire community surrounding the construction site.
In this case, the plaintiff was operating his motor vehicle when it struck a raised expansion joint, causing him to lose control of his car, leave the roadway and strike an adjacent stone wall and utility pole. The defendant construction company had been performing work on the roadway and had left loose gravel and other debris within the traveling lane. The defendant construction company also placed a partial asphalt patch and left an expansion joint spanning the travel lane that rose about two inches above the ground. There were no warning signs cautioning drivers that the roadway was being worked on at the time.
This case is a good example of a construction company who did not fulfill their safety responsibilities at a construction site. Construction companies have a responsibility to perform their work in a reasonably safe manner, and should never be allowed to needlessly endanger anybody, whether it be construction workers who are working at their project, or members of the community such as this person who was injured while driving on a town road. Construction companies must perform a pre-hazard analysis in order to prevent these types of accidents. A pre-hazard analysis requires a construction company to determine (at the outset of the project) what unique aspects of each particular project could cause harm to people, and then either plan to eliminate that hazard or if it cannot be eliminated, to take reasonable precautions to prevent people from being exposed to the dangerous condition. A construction company performing work on a roadway that is open to the public should be expected to know that any conditions that they create which could impair a driver’s ability to navigate that roadway are putting the community at a substantial increased risk of harm, which may be serious injury or death. Construction companies must take all necessary precautions in order to prevent harm to the people who are expected to be exposed to these dangerous conditions.
PART 2 of 2
Part 1 of this blog, discussing workers’ compensation benefits available to those who have been injured while working for an uninsured employer in Massachusetts was published on October 18. Because workers’ compensation only provides limited benefits and often times does not provide adequate compensation for the harm caused by a workplace accident, it is important to thoroughly investigate all possible civil remedies which can provide additional compensation not provided by workers’ compensation laws, such as pain and suffering.
Civil/Third Party Claims
If a general contractor or negligent third party with insurance coverage or reachable assets cannot be identified, the injured worker has the right to recover full tort damages directly from his uninsured employer. Once it has been determined that the employer did not have workers’ compensation coverage on the date of injury, a plaintiff seeking a tort recovery against an uninsured employer must first establish:
1) the employee-employer relationship,
2) the plaintiff was injured, and
3) the injury arose out of and in the course of employment.
See. M.G.L. c. 152, §25A; G.L. c. 152, § 66. Continue reading