Articles Posted in Construction Accident Injury

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Depression is a disease that affects many Americans. In recent years as the unemployment rate has skyrocketed, depression has increased as well. Workers who find themselves in vastly different life circumstances than they had planned for, are likely to begin to suffer from depression even if they never have experienced problems in the past. A person who is injured while on the job and finds themselves disabled is more likely than any other unemployed person to suffer from depression related illnesses. A disabled Nassau worker has gone virtually overnight from being a strong active employed person to being bedridden for several days or weeks and unemployed. The new wording to the Family Medical Leave Act states that if a person is catastrophically injured on the job, their company is only required to keep their job open for them for twelve weeks. At the end of the twelve week period, that injured employee may be fired and a new person hired to fill their job. The days of companies and even government entities standing behind an employee who has been injured on the job are over.

That was the situation that one New York highway department worker found himself in when he was struck by a car while at work. He sustained serious personal injury from this accident in December of 1995. His spinal injury left him disabled and unable to return to work. He began to suffer from depression and in January of 1998, his wife found him dead by his own hand. She filed a request for workers compensation death benefits. Her contention was that her husband committed suicide because of his depression which was directly related to the accident at work. A Workers’ Compensation Law Judge agreed that the wife should be granted death benefits. The Workers’ Compensation Board determined that she should not be awarded death benefits because they found that there was no causal relationship associated to the accident and the husband’s suicide. The wife filed an appeal of their decision.

She based her appeal on the fact that death benefits are deemed appropriate if the work injury results in insanity, brain injury, brain deterioration or a pattern of mental deterioration which may culminate in suicide. She also contends that there was no lawyer on the board to evaluate the application of law in this case. According to the Laws of New York State, in order for this woman to be awarded compensation, she must show that there was a causal link between the accident and her husband’s suicide. In order to demonstrate a causal link, she must present competent medical proof that her husband suffered from a mental deterioration brought on by the accident that ended in him taking his own life. The board is required to give more credence to an opinion based on medical evidence, than they are their own opinions that are not based on medical knowledge.

In this case, the wife presented only one medical expert to prove her case. The doctor that she presented was a board certified psychiatrist; however, he had never actually treated her husband before his death. The Suffolk doctor based his opinion only on the written medical records and correspondence with the man’s wife. The court did not feel that this was a sufficient medical opinion in light of the fact that the doctor had never even met the injured man. The medical records that were produced from doctors who did actually treat and know the man before his death showed no mention that the man was suffering from depression or any other type of mental illness. Based on this information the court agrees with the Workers’ Compensation Board that there is not enough evidence present to grant her a death benefits claim.
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A Manhattan contractor who owned a home improvement company obtained a contract to renovate a couple’s home. The man worked on the couple’s home: he was up on the roof supervising the repair of the roof when he slipped and fell. He hit his head and sustained a brain injury.

He filed a personal injury complaint against Workmen’s Compensation, against his own company and against the couple who owned the house he was renovating. In that personal injury case, trial was held to determine if the brain injury sustained by the contractor qualifies as a grave injury under the Workmen’s Compensation Law.

During the trial, the contractor adduced proof regarding the extent and nature of his brain injury. His medical experts testified that the contractor had cognitive dysfunction which permanently disabled him from doing any work. The insurance company provided its own expert who conducted a neuropsychological evaluation of the contractor. The expert of the insurance company found that the contractor’s brain injury was severe and traumatic such that he has lost the ability to make decisions required in daily life.

The contractor’s home improvement company was insured for Workmen’s Compensation by an insurance company. During the trial to determine the extent of the grave injury sustained by the contractor, the insurance company sent its lawyer who fully and knowingly participated in the trial even though it was not a party to the said personal injury action. The Queens insurance company was allowed to propound questions to the witnesses presented during the trial. At the end of the trial, the court declared that the contractor suffered a grave brain injury. The contractor was then given an award of damages amounting to about $6,500,000.00 which the couple and the home improvement company immediately paid and settled. The home improvement company and the owners of the house then seek reimbursement or contribution from the insurer of the home improvement company
The insurance company then filed a case where it seeks a judicial declaration that it is not bound by the findings during the personal injury proceedings that the contractor sustained a grave injury. The only question before the Court is whether or not the insurance company is not bound by the findings in the personal injury action that the contractor sustained a grave injury.

The Court held that in order for the insurance company to be held as bound by the findings in the personal injury case, there must be proof that it was a party to the personal injury case or at least privy with any of the parties in that case; the interests of the insurance company were represented during the trial; and the insurance company had a fair opportunity to fully participate in litigating the issue of the nature and extent of the contractor’s brain injury.

The extent and nature of the contractor’s brain injury were fully litigated in the personal injury action. Because the insurance company provided its own expert to examine the contractor, the insurance company is deemed to have been given a fair and full opportunity to be privy to the litigation. Because the insurance company was allowed to propound questions to the witnesses, it is inevitable to conclude that it was given the opportunity to litigate the issue.
For these reasons, the insurance company can no longer be allowed to re-litigate the issue of whether or not the contractor sustained a grave injury. This action for judicial declaration must be dismissed. The insurance company is estopped or barred from re-litigating this issue again.
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These are three consolidated cases of employees who were all injured while they were performing tasks directly related to their employment. The only question raised in these cases is whether or not the employees here have suffered grave injury; that is, whether they suffered a brain injurythat results in permanent total disability. The question of what can be considered a permanent total disability has to be defined.

In the first case a Bronx ironworker fell about 19 feet to the ground. He was standing on a ladder installing a steel cupola. He was an employee of an iron works company which was then rendering iron works for a night club. The ironworker hit his head and sustained a brain injury.
He filed a suit in damages under the Worker’s Compensation Law against his employer, iron works company and the night club which hired the iron works company.

After the presentation of evidence the trial court charged the jury that they can only award damages if they find that the iron worker sustained a grave injury. A grave injury means that the iron worker can no longer be employed and that he is unable to perform the common everyday tasks of day-to-day living.

The jury found the iron worker to have sustained a grave injury and awarded him the sum of $3.2 million. On appeal by the iron works company, the Appellate Division found that the iron worker did not suffer a grave injury because he is still able to perform common everyday tasts.
In the second case, a couple hired a general contractor to renovate their house. The general contractor hired a roof installer to remove and replace the shingles on the couple’s roof. The house was six-stories high and the roof installer fell from the roof as he was removing shingles. He sued the Brooklyn general contractor and the couple who owned the house.

The general contractor moved for summary judgment asking that the complaint against it for Worker’s Compensation be dismissed. The trial court denied the motion for summary judgment. It held that the evidence raised material issues of fact. The general contractor appealed and the Appellate Division reversed the denial of the motion for summary judgment. The Appellate Division held that the injuries sustained by the roof installer were not grave injuries as these are defined by the Worker’s Compensation.

The third case is about an electrician who was working for a contractor. He fell 17 feet while he was on a ladder installing electrical connections. After the presentation of evidence the trial court charged the jury that a finding of permanent total disability means that a person can no longer be employed but it does not mean that a person has lost the ability to perform common day-to-day tasks. The jury found that the electrician suffered permanent total disability as a result of his brain injury and awarded him $11 million.

The Court noted that all these three cases were decided on appeal by different departments of the Appellate Division interpreting the same law. To synchronize and harmonize the decisions, the Court held that the legislature enacted the worker’s compensation law so that employers who provide for worker’s compensation shall be immune from liability for damages except for grave injuries.

Grave injuries were meticulously and narrowly defined and enumerated in the law. The list of injuries shows that those grave injuries do not prevent the employee from performing common daily tasks but it does impair his employability. Among the grave injuries listed is a brain injury that results in a permanent total disability. The crux of the matter is the precise definition of what permanent total disability means. Two definitions have so far been made: the first is brain injury that results in permanent total disability from being employed in the customary employment; the second is brain injury that results in permanent total disability not only from being employed but also in performing the common daily tasks of life.

The Court held that within the context of the Worker’s Compensation Law, the word ‘disability’ usually refers to inability to work; inability to earn full wages at work that the employee used to be employed.

The grave injuries, therefore, the Court held, must be those injuries which will prevent the employee from being hired in any capacity. His inability to perform daily tasks is irrelevant to the consideration of whether or not it is a permanent total disability.
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Head trauma, by medical standards, has to have a broad definition, New York Brain Injury Lawyers have learned. It can refer to any trauma to the body above the lower border of the mandible. In fact, injury to the face or jaw is considered different from head trauma, even though injury to one often causes injury to the other. For these purposes, the head includes the scalp, skull, meninges, blood vessels, and brain. Trauma is used to mean an external force of energy, like a mechanical force, that causes physical injury to any or all of the tissues that make up the head. Other injuries, such as those caused by electrical, thermal, or chemical energy are usually considered to be a separate sort of injury, treated as burns, but deep burns can often cause injuries that require neurosurgical care. Such construction accident injuries, however, are quite rare.
For the purposes of a study to collect data on head injury, there is no agreed definition, New York Brain Injury Lawyers have learned, which makes it nearly impossible to compare studies when they do occur. It is important, therefore, to find a definition that fits. Some have stressed the separation of head injury from brain injury, with the latter meaning neurological damage. These same sources also advocate the identification of patients who sustain ‘neuro-trauma of public health consequence’ where there was a high chance of ongoing neurological impairment which would require medical or nursing care.
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