When “Safety First” Comes in Last

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Catastrophic or Deadly Work Accidents

Most work accidents do not end in death or catastrophic injury, but unfortunately, some do. 

How does an injured worker or their family make certain that they obtain all the benefits to which they are entitled?  The key is to look to the North Carolina Workers’ Compensation Act, but not stop there.  Often there may be a civil action or action available as well, which will allow the catastrophically injured employer or their family recover more than just the modest benefits provided by workers’ compensation.

North Carolina’s Workers Compensation Act

As noted above, the North Carolina Workers’ Compensation Act is a statutory creation that provides limited benefits. Under North Carolina Workers’ Compensation Law, an injured employee is left with essentially two remedies, replacement of wages loss, and payment of related medical expenses. Other damages which are available in a personal injury action such as for pain and suffering, and other intangible damages are not available.  That said, in the case of a catastrophic injury, the North Carolina Workers’ Compensation Act does potentially provide the catastrophically injured worker some additional benefits.

First, often a catastrophically injured worker will have severe and life-altering injuries which make them eligible to obtain more than the 500 weeks of weekly disability benefits.  Work accidents resulting in paralysis, severe burns, significant neurocognitive injuries, or loss of two limbs can be used to argue for benefits past the 500-week cap.  Additional penalties can apply in situations where an employer intentionally fails to adhere to established safety regulations.

The North Carolina Workers’ Compensation Act (NCGS 97-12) provides that in such situations, disability compensation to an injured employee can be increased by 10%.  Lastly, there is a very rare instance in which an injured worker may pursue a negligence claim against their employer.  This is called a “Woodson” claim, but it is rare for such claims to succeed.  In order to do so, focus must be on safety violations committed by the employer, and the severity of the same.  To pursue such a claim, it is required that it be shown that the employer acted wantonly and recklessly.  Such a standard is hard to meet, so an early review of the potential for a claim is important.

Employees Injured on the Job

The Occupational Safety and Health Division of The North Carolina Department of Labor is tasked with regulating workplace safety in North Carolina.  In addition to promulgating safety rules alongside Federal regulations (OSHA), the division also investigates serious workplace injuries, which employers are required to report subject to specific requirements.  The North Carolina Department of Labor also provides a means for individuals to file complaints or request investigations.  Accidents involving catastrophic injuries will obviously receive attention, however, an injured worker should be aware of the ability to seek enforcement of OSHA standards even if their injury is “minor”.  Correction of an intentional or inadvertent violation of proper safety practices can prevent more serious injuries or even fatalities in the future.

Report Work Injuries

In a catastrophic work injury case, it is imperative to quickly confirm that the North Carolina Department of Labor is aware of the injury, has opened a file, and initiating an investigation.  (Even where an injury is not catastrophic, if there is a genuine concern about whether safety regulations were violated, it never hurts to check with the department of labor to at least determine if any investigation occurred and possibly initiate the same.) In some circumstances, it is advisable for a catastrophically injured worker to quickly obtain their own expert whose efforts will be focused more specifically on the injured worker rather than general labor and safety standards and their enforcement.   It is also important to determine if the employer has a history of violating safety regulations and laws.

Machine vs. Man

Lastly, a catastrophically injured employee may have an action against a negligent third party.  When a catastrophic work accident occurs at a workplace or work site, it often involves heavy and/or complicated machinery.  An injured employee and/or their family may be able to pursue a third-party civil action against the manufacturer, installer, and possibly the entity who maintained the machinery (if not the employer). Such an action allows recovery of more than the limited remedies available under the North Carolina Workers’ Compensation Act. 

Again, early investigation is crucial to determine the cause of an accident. When heavy equipment or machinery is involved, one of the first steps should always be to secure the machine or equipment so that an expert can investigate whether a fault in the machine design or its use was responsible for the accident.   It also helps make certain that the North Carolina Department of Labor can perform an adequate investigation to determine whether the employer should be penalized and/or fined.

An employer or its insurance carrier has a right to pursue its own third-party claim to recover for the benefits it paid due to the injury or seek reimbursement for a claim filed by the injured employee.  This can only be done a year following the injury if the injured worker chooses not to pursue a claim, and in the last 30 days before the statute of limitation, the employee has the exclusive right to pursue a claim.  Accordingly, one would expect employers and the insurance companies which provide them workers’ compensation coverage to be motivated to thoroughly investigate the potential for a third-party claim.  However, this often not the case.

An injured worker should not rely on their employer or its insurance company to aggressively investigate potential claims quickly or at all, whether due to laziness (they have not suffered a catastrophic injury or the loss of a loved one!) or even a desire not to pursue a claim against a company with whom they have a longstanding business or personal relationship.

Accidents at work will sadly always happen, but adherence to best safety practices, safety training, and obeying relevant safety regulations can prevent many accidents.  Where a catastrophic work injury results from an employer’s failure to adhere to relevant safety regulations and laws, or the negligence of a third party such as a manufacturer, it is always a good idea to consult an attorney who has the experience necessary to obtain the most benefits and damages possible for the injured worker. At The Law Offices of Jason E. Taylor we have experienced workers compensation attorneys. If you have been injured at work give us a call for a free consultation or complete a contact form and one of our investigators will be in touch.

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