Construction accidents can happen to anyone. It’s common for employees to work at height, with machinery or alongside any number of potential hazards, so it’s no surprise that injury rates in construction are 71% higher compared to other industries.

Anything from a ladder manufacturing defect to an unguarded ledge or wet surface can increase the likelihood of a fall, but those aren’t the only dangers. If scaffolding collapses due to an excessive load or improper construction, it can prove fatal.

Then, there are struck-by hazards—one of the Occupational Safety and Health Administration’s (OSHA) “Fatal Four”—including falling, swinging and rolling objects; crane misuse; electrical faults; and issues with personal protective equipment. These are all hazards construction workers have to contend with daily.

Such dangers can also cause wide-ranging injuries, from broken bones that heal without complication to life-changing traumatic brain injuries or spinal injuries that have huge repercussions for construction workers.

In any case, a construction accident can cause a long, often painful, recovery, with workers needing significant time off work to recover.

But where do they stand when it comes to compensation? Can they file a personal injury claim or can they expect only a workers’ compensation payout to cover their lost income and medical expenses?

What’s the Difference between Workers’ Comp and a Personal Injury Claim?

Most construction workers are aware they are entitled to workers’ compensation when they’re injured at work. In all states but Texas, workers’ compensation insurance is mandatory, which means that if your employee is injured at work—and they can prove it—they can claim workers’ compensation.

It’s important to note that there are exceptions depending on your location. For example, workers’ compensation insurance is not required in some states if you employ only a few individuals or have a smaller revenue. That said, workers’ comp exists to protect you from liability while also providing your employee with a financial buffer if they’re in an accident, so it’s well worth considering.

So what does the insurance cover? Workers’ compensation covers any medical expenses incurred to treat your employee’s injury and lost wages for time off work. They aren’t entitled to any additional compensation for pain and suffering or any loss of enjoyment a long-term injury might cause.

What many construction workers aren’t aware of, though, is that they may be able to file a personal injury claim.

The burden of proof for this type of claim is more complex, as they must show that a third party is liable for their injury.

To file a third-party personal injury claim, an employee or contractor must prove:

• The third party owed them a duty of care;
• The third party breached that duty of care; and
• That breach of duty caused the injury.

A breach could be any negligent behavior, from failing to protect workers from exposure to hazardous substances or materials or providing them with defective personal protective equipment.

The benefit of an individual filing a personal injury claim is that they could also receive non-economic damages. These damages differ from economic damages like lost wages or medical expenses because they can’t be as easily quantified in monetary terms. Common non-economic damages include pain and suffering, emotional distress and loss of enjoyment. This can lead to a potentially hefty payout, especially for younger workers.

WHICH Third Parties Might Be Liable?

Your employee might have been injured during a construction accident and received a workers’ compensation payout but, sometimes, third parties are liable for the accident. In this case, they may also be able to file a personal injury claim.

Does this mean that you could face a hefty personal injury payout? Not necessarily.

If you have workers’ compensation, this will cover your employees’ lost wages and medical expenses. Filing a workers’ compensation claim is not an admission of liability or negligence, as these don’t come into play.

For example, if you employ a construction worker who has an incident while using faulty equipment, you can file a workers’ compensation claim with your insurer to cover their medical treatment and lost wages. Because you have this insurance, your employee cannot sue you. However, because the tool caused the injury and was defective, the employee may choose to sue the manufacturer.

If you don’t have insurance (for example, you’re in Texas and you either choose not to or you don’t meet the mandatory criteria) and your employee can prove you have breached a duty of care, they may choose to file a personal injury claim. If their claim is successful, you could face a large payout comprising not just their past and future monetary expenses but also an additional payout for any "pain and suffering" the injury has caused.

What Are Employees’ Options for Getting Compensation after Their Construction Accident?

Claiming Workers’ Compensation

If you have workers’ compensation insurance and an employee has been in an incident at work, they should immediately seek medical treatment and then inform you of their injury—making it clear that it happened on the job. Employees have a strict time frame to do this, ranging from a few days to several months, depending on your state.

Then, you need to inform your insurer about the incident  and file the appropriate paperwork. The Workers’ Compensation Commission in your state will review the case and determine whether your employee is entitled to compensation and how much they should receive.

Filing a Third-Party Lawsuit

If your employee believes a third party was negligent or reckless and caused their injury, they might file a third-party lawsuit. Remember, they can only file a claim against you if you do not have workers’ compensation insurance.

To prove negligence, they will need sufficient evidence. This might include witness testimonies, medical records, citation reports, accident site examination reports, OSHA violation investigative reports and details of any equipment used.

If they make a claim against you for negligence, they may choose to hire a dedicated construction accident injury lawyer to handle their case. Filing a claim is increasingly an option, as many attorneys work on a contingency basis, which means they’ll only ever pay legal fees if their case is successful. If you are facing a claim, you should also seek legal advice, as a large compensation payout could significantly impact your business.