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Third-party liability for workplace injuries: careful investigation and creativity may reveal alternative sources of liability for workers who are seriously injured on the job.

Article Excerpt
Hoping for some extra pay after a weeklong vacation, Jim, a materials handler at his employer's steel-distribution center, reported for an overtime shift. He mounted a sideloader--a specially designed forklift--to move long bundles of steel in the narrow aisles between the storage shelf brackets fabricated from welded I-beams.

Minutes later, Jim's coworkers heard his screams. The left side of Jim's skull had been impaled on the end of an I-beam. Miraculously, he survived, but he suffered severe brain damage.

How did this happen? The employer was quick to blame Jim, asserting in its investigative report that he had been careless while operating the sideloader. Jim himself had little recollection of the incident, and, because of his brain injury, he was unable to fully communicate what he did know. There were no other witnesses.

The temptation for a plaintiff attorney is to consign Jim's legal recovery to the benefits available through state workers' compensation. Workers' comp laws are designed to provide relatively quick and certain benefits for individuals injured in the workplace.

These benefits are automatic, regardless of fault--a fact particularly relevant for Jim, whose employer blamed him for the accident. (1) In exchange for the guaranteed protection of workers' compensation, employees forfeit the right to sue their employers in all but a few of the most egregious circumstances. (2)

Guaranteed workers' comp benefits are not an adequate financial safety net, however, especially for workers like Jim who have catastrophic injuries. Most workers' comp systems replace, at most, only two-thirds of the pre-injury salary, typically excluding fringe benefits. The benefits are often capped without any cost-of-living adjustment. Though workers' comp benefits usually provide for medical and rehabilitation costs, they do not provide any compensation for pain and suffering.

Moreover, benefits can be reduced or terminated if a worker, even one who has suffered a severe injury, is deemed still able to earn money. An employer may subject the worker to repeated medical and vocational examinations to determine the remaining degree of disability and lost earning capacity. Moreover, some states impose an absolute limit on the amount of time for which an injured worker can receive partial disability benefits, even if the worker has not fully recovered. (3)

Though injured workers cannot sue their employers, they can sue so-called third-party defendants--other entities that may have played a role in causing their injuries? For Jim and other catastrophically injured workers, such litigation may be the only route to a financial recovery commensurate with their injuries. In an industrial setting, potential third-party defendants often include manufacturers and distributors of unsafe machinery, outside contractors that have acted negligently at an employer's work site, and contracted employers--excluded from workers' compensation immunity--that have provided unsafe premises on which to work.

Third-party defendants can be difficult to identify, often requiring intensive, expensive prefiling investigation. However, you can increase your chances by paying careful attention to every element of the incident and using creative thinking. An investigation into Jim's injury, for example, revealed at least three culpable parties: the manufacturer of the sideloader, the local forklift distributor that had repaired the sideloader before the accident, and the installer of the storage shelves.

For catastrophically injured workers, the difference between a workers' compensation recovery and the addition of a third-party recovery can mean the difference between fiscal life and death.

Investigating the incident

Third-party claims rely on prompt and thorough accident investigations. You must preserve every possible piece of relevant evidence. This means setting aside equipment, clothing, or any other...

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