Visitor Question

Workers Comp Mistake…

Submitted By: Denise (Mastic NY)

My husband was working and while cleaning the outside of a commercial building he was struck by a 60ft ladder. The owner of the ladder was a contractor hired to hang a sign. It was not properly secured.

He suffered a Neck Sprain, a shoulder injury which involved surgery, and a herniated disk in his back which may require surgery. Workers comp neglected to acknowledge his disk problem and let 5 months go by before an addendum was filed.

Now my husband is only at 50% for his shoulder and gets only a small amount in a check twice a month. But yet he cannot return to work until his back is fixed. We were told he can lose his job within 12 months which leaves him no additional time to get the back surgery and heal. This was all because an error was made in the original filing by workers comp, causing delay in his treatment.

Is this right? I also read he is entitled to additional benefits through his employer under NY labor law 240 & 241. But our workers comp lawyer keeps insisting he is not entitled to anything. We do have a separate suit for the company who was hanging the signs. Please advise. Thank you.

Disclaimer: Our response is not formal legal advice and does not create an attorney-client relationship. It is generic legal information based on the very limited information provided. Do not rely upon the information in our response, or anywhere else on this site, when deciding the proper course of a legal matter. Always get a personalized case review from a local attorney.

Answer

Dear Denise,

We do believe from the facts you present your husband may have solid claims against the construction company, the sign company, the owners, and possibly the managers of the commercial building.

If after investigating the facts of the case you are able to determine the owners or management, or both, did not perform due diligence when hiring the sign company, or the construction company which was hanging the sign, your husband may have a strong case against them.

By due diligence we mean it was incumbent upon the owners and management of the building to make sure whomever they hired to hang the sign had a good safety record. Because a commercial building has within it and around it a substantial amount of people, they have a higher duty of care. This includes those who may, from time to time, work on the builing.

If they did not investigate and the company had a bad reputation for safety, or if they did investigate and learned the construction company had a bad safety record and hired the construction company anyway, the owners and management may be liable for negligence in the hiring of the sign and construction company.

New York State Labor Law Section 240 demands protection for workers against falls from heights or dangers presented by falling objects that were improperly secured. Contractors and property owners are held responsible whether there was a lack of sufficient safety devices or compliance with safety rules, or none at all.

Section 241 stipulates that contractors and property owners ‘provide reasonable and adequate protection and safety’ for all workers and those who frequent the site. In construction, excavation, and demolition, there are countless conditions that need to be taken into account to achieve this.

From the facts you present it appears your husband has already received a decision from the Workmans Compensation Board regarding his injuries. Regrettably it is true if your husband is unable to return within a prescribed period he may lose his job.

The above is general information. Laws change frequently, and across jurisdictions. You should get a personalized case evaluation from a licensed attorney. Find a local attorney to give you a free case review here , or call (888) 647-2490.

Best of luck,

Published: August 4, 2011

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