Claims for compensation in these matters – whether through the workers’ compensation system or by third party liability lawsuit – are often complicated by the fact that many construction sites have a number of entities and employers and contractors involved.
In the recent North Carolina Court of Appeals case of Bullard v. Peak Steel, plaintiff sought compensation via a third-party liability lawsuit against the construction company on whose site her husband was fatally injured. Trial court had dismissed the claim for lack of subject matter jurisdiction because it concluded the worker was in fact an employee of the defendant, meaning the Industrial Commission had jurisdiction over the claim. The appellate court ultimately affirmed this conclusion, meaning workers’ compensation death benefits would be her only recourse at this point.
There are some cases in which it is worthwhile to pursue third-party litigation. Although plaintiffs in such cases do have to prove defendant was negligent (something that is not needed to establish in North Carolina workers’ compensation cases), the damage awards are often much higher.
The only way one can sue an employer for a work-related injury or death is if plaintiff can prove the incident occurred as a result of intentional misconduct or gross negligence. It’s a tough burden of proof to establish.
In this case, the worker was employed by a temporary employment agency. That company had entered into an agreement to provide skilled laborers to defendant construction company, which was erecting steel at a construction site in Wake County. The agreement required the temp agency to provide workers and pay wages and benefits. The temp agency assured the workers would be skilled and knowledgeable, though defendant was responsible for supervising those workers and had authority to terminate. Defendant also provided general liability insurance, as well as workers’ compensation insurance for the workers.
In the months before the accident, defendant had been cited by federal safety officials for a number of serious violations that put worker safety in jeopardy.
Then in May 2011, decedent was struck by a 700-pound arc of tubular steel. Workers at the site had not properly secured it, and when it fell 15 feet to the ground, it hit a block of concrete and then rebounded, striking decedent on his back, neck and head.
Worker was badly injured and had to undergo a number of surgeries. Despite these efforts, a month later, he died of his injuries.
Worker’s widow sued defendant, alleging negligence and wrongful death. She also asserted a Woodson claim, which is when a cause of action that asserts recovery based on an employee’s injuries resulting from the employer’s intentional misconduct that is substantially certain to cause death or injury.
Trial court granted a defense motion to dismiss the claim, finding that the worker was an employee of both the temp agency and defendant and the claim did not meet the “intentional misconduct” prong of the Woodson test, and therefore, the proper forum for the claim was the North Carolina Industrial Commission.
Plaintiff appealed, arguing she had presented sufficient evidence on her Woodson claim and that her deceased husband had not been a special employee of defendant. However, the appellate court affirmed, finding decedent had been defendant’s employee and there was not sufficient evidence defendant’s alleged conduct was intentional.
If you have been injured at work, contact the Lee Law Offices at 800-887-1965.
Bullard v. Peak Steel, Jan. 5, 2016, North Carolina Court of Appeals
More Blog Entries:
Rhame v. Charleston County – Repetitive Trauma Work Injury Claim Within Statutory Limitations, Jan. 4, 2016, Asheville Workers’ Compensation Lawyer Blog