The chief causes of construction site injuries and industrial death claims are unsafe work practices and unsafe work site conditions. These most often are caused by employers' failure to comply with federal and state mandated safety practices, failure to provide adequate safety equipment such as scaffolding, safety harnesses and fall protection devices, failure to provide safe and properly functioning tools and machinery, use of worn and failing cables, and trenches that have not been properly graded and shored. Excessive work schedules without adequate rest breaks and work in inclement weather and poor visibility also increase the risks workers face.

All job site accidents are covered by California's (or other states') workers' compensation laws.  But the benefits are limited and the injured worker never gets fully compensated for his/her full lost wages, and never for pain and suffering. Filing a law suit against the responsible third party (not the employer) is essential to the possibility of a worker's receiving full compensation.

Many industrial accidents are caused by the negligence of a third party, such as a subcontractor, a vehicle driver, equipment operator or an equipment manufacturer. It is therefore essential to always file third party claims against the responsible parties in a job site accident. In this way the injured worker has the benefit of recovery through both the civil court and workers' comp system concurrently.

Often in California, both claims may ultimately be resolved together through a third party Compromise and Release settlement. This can occur through mediation with all parties present, including the workers' compensation representative/attorney who is seeking statutory workers' comp lien reimbusement from the civil settlement for comp benefits paid.

Interesting Settlement

In April, 2009, Michael D. Goforth settled the following case:

Court/Branch:  Contra Costa Superior Unlimited Jurisdiction, Martinez, CA

Case Name: Gary Taylor v. Confidential refinery owner and Confidential Scaffold Contractor

Judge: Hon. Barbara Zuñiga, Dept 2

Mediator: Hon. Raul A. Ramirez (Ret), Sacramento, CA

Date of Settlement:April, 2009

Type of case: Industrial/negligence

Settlement amount: $1,500,000.00 ($65,000.00 from Refinery Owner, $1,435,000.00 from Scaffold Co). This case settled following one full day of mediation. The settlement was a third party Compromise and Release wherein intervenor agreed to waive its $322,614.17 industrial lien.

Counsel:

Plaintiff counsel: Michael D. Goforth, Goforth & Lucas Law Partnership, 2300 Clayton Rd., Suite 1460, Concord, CA; Phone: 925-682-9500; Fax: 925-682-2353; email mailto:mdg@goforthlucas.com" mdg@goforthlucas.com . Mr. Goforth also represented the plaintiff in the workers’ compensation claim  filed October 26, 2006.

Facts

On August 3, 2006, plaintiff, then 51, was working as a pipefitter for Timec Company, Inc. inside of a Martinez, CA flexicoker reactor, during a refinery “turnaround” (shutdown).

The reactor is a multi-story cylinder with a circular metal dipleg (pipe) running vertically through its center.

The scaffold within the reactor consisted of steel planks connected in a rectangular configuration around the dipleg which left a gap between the metal planks and the dipleg. Brand covered the gap with wooden planks and plywood to prevent workers   from falling through the scaffold deck in the areas near the dipleg..

At the beginning of his shift plaintiff entered the reactor and began looking for a power source to connect his electric grinding tools.  When plaintiff stepped near the dipleg, a wooden board gave way and plaintiff’s right leg plunged through the deck to waist level.

Plaintiff’s left leg hyperflexed under his weight. Plaintiff was able to halt his downward plummet  by his elbows, shoulders, and large body size which kept him from passing entirely through to the floor below. Plaintiff fell forward with a twisting motion onto both hands and arms. He was able to get himself out of the hole and down a 7 foot ladder. First aid was rendered on site and plaintiff tried to continue working over the next several days, but noted progressive pain in his left knee. Within a few days of the accident plaintiff also complained of soreness all over as well as localized pain to his right shoulder.

Ultimately, plaintiff’s injuries were diagnosed as: left knee derangement, right and left shoulder ruptured tendons, and L2-3 and L4-L5 disc herniations. In November 2006 plaintiff underwent arthroscopic partial medial and lateral meniscectomy of the left knee. In December 2007 plaintiff underwent open rotator cuff repair of the right shoulder.

In February 2007 plaintiff returned to work for 43 days but stopped due to progressive pain in his shoulders, back and left knee. In January 2008 Plaintiff underwent left total knee replacement and did not return to work thereafter due to worsening back pain.

Plaintiff had worked for Timec for 6 months and as a pipefitter intermittently prior to that time for several years. Plaintiff’s contended that his injuries prevented him from returning to work as a pipefitter.

Plaintiff’s contentions:

1.)   Scaffold Co. failed to safely build and maintain the scaffold that the plaintiff was using;

2.)   Refinery, as owner operator of the reactor, failed to protect the integrity of the work site or insure project safety;

3.)   Employer,  failed to inspect the worksite or properly train its workers.

4.)   Plaintiff could never return to work as a pipefitter as a result of his injuries.

Defendants’ contentions:

1.)  Plaintiff was inattentive to an open and obvious hole in the scaffold;

2.)  Scaffold Co. was not liable since it appeared that one of the contractors working on the project modified the scaffold;

3.)  Plaintiff’s back injuries were non-industrial since the medical file doesn’t mention plaintiff’s back complaints until some 5 weeks post-accident;

4.)  Refinery had no liability because Scaffold Co. was responsible for the scaffold construction.

Intervenor’s contentions:

1.)   There is no evidence that the employer did anything or failed to do something that caused the subject accident;

2.)   Intervenor is entitled to full reimbursement of benefits paid (medical $231,259.14, indemnity $91,355.03) pursuant to LC § 3850, et seq.

3.)   Any comparative fault assessed against the plaintiff may not be imputed to the employer.

Experts: At the time of mediation the parties had not yet retained experts.

In the workers’ compensation case,  AME Joel Renbaum, M.D. reported that plaintiff’s back injuries were reasonably related to the industrial,  that plaintiff may require spine surgery in the future and that plaintiff has a 35% impairment of the Whole person.