Compensation for Construction Accident Victims in San Diego

Workers' compensation provides important benefits after a construction injury, but it was not designed to compensate an injured worker for every loss.

It generally pays medical and disability benefits without requiring proof that anyone caused the accident. It does not compensate an injured worker for pain, suffering, loss of enjoyment of life, or many of the other consequences of a catastrophic injury.

When someone other than the worker's employer contributed to the accident, a separate third-party claim may provide a much broader recovery.

This guide explains the compensation available after a serious California construction accident, how workers' compensation and a third-party case interact, what determines the value of the civil claim, and what can affect the amount an injured worker ultimately keeps after liens, fees, and costs.

If you would rather discuss your own situation, a San Diego construction accident attorney at our firm can review what happened at no cost.

Two Paths to Compensation After a Construction Injury

A serious construction accident may involve two different legal systems.

Workers' compensation is generally the first. It provides benefits for employees injured in the course of their work without requiring them to prove that the employer or anyone else was negligent.

A third-party claim is different. It is a civil claim against a person or company other than the employer whose conduct contributed to the injury.

Depending on the facts, a third-party defendant might be:

• another subcontractor;
• an equipment owner or rental company;
• the manufacturer or distributor of defective equipment;
• a delivery company or vehicle driver;
• an architect, engineer, or other professional;
• a property owner; or
• a general contractor or other hirer when California law permits a claim against that entity.

California places important limits on claims by contractor employees against those who hired their employers. Under the Privette line of cases, a hirer generally delegates responsibility for workplace safety to the independent contractor. Exceptions can apply, including situations involving retained control that affirmatively contributed to the injury or certain concealed hazards.

That is why a serious construction accident must be investigated based on what each company actually controlled and did, rather than simply suing every company whose name appears on the project.

Our guide to third-party liability in construction accidents explains these issues in greater detail, while our overview of the types of construction accidents covers the accidents that commonly lead to these claims.

Under California Labor Code section 3852, receiving workers' compensation benefits generally does not eliminate an injured employee's right to recover damages from a legally responsible third party.

Why Workers' Compensation and a Third-Party Claim Are Different

Workers' compensation has a major advantage: an injured employee generally does not need to prove fault.

But the benefits are limited by the workers' compensation system.

Under Labor Code section 3602, workers' compensation is ordinarily the employee's exclusive remedy against the employer when the statutory conditions are satisfied. California law recognizes limited exceptions, but an ordinary negligence claim against the employer is generally barred.

Workers' compensation can pay for medical treatment and provide disability and other statutory benefits. It does not award damages for pain and suffering.

A third-party civil case can potentially recover losses that the workers' compensation system does not.

That difference becomes particularly important after a catastrophic injury. The financial consequences may extend far beyond immediate medical bills or temporary lost wages. A worker may lose decades of earning capacity, require lifelong medical care, or be unable to participate in the activities and relationships that defined life before the accident.

Our firm handles the third-party civil case. The workers' compensation claim is a separate proceeding governed by different rules.

What Damages Can You Recover in a Third-Party Construction Accident Case?

A third-party personal injury claim can seek compensation for the losses legally caused by the accident.

California generally divides compensatory damages into economic and noneconomic damages.

Past and Future Medical Expenses

A seriously injured construction worker may require emergency treatment, hospitalization, surgery, rehabilitation, medication, medical equipment, injections, therapy, home care, or future procedures.

A third-party claim can seek the reasonable value of medically necessary care caused by the injury, subject to California's rules governing proof of medical damages.

For catastrophic injuries, future care can become one of the largest components of the case.

Treating physicians may address prognosis and anticipated treatment. In appropriate cases, life-care planners can develop a detailed projection of future medical, rehabilitation, equipment, attendant-care, and home-modification needs.

Our guide to common injuries in construction accidents explains why some jobsite injuries create medical needs that continue for years or for life.

Past Lost Earnings

An injured worker can seek compensation for earnings lost because of the accident.

The analysis may include regular wages, overtime, and other compensation the evidence shows the worker probably would have earned.

Construction cases can require a closer look than simply multiplying an hourly rate by the time missed. Union workers, apprentices, forepersons, and skilled tradespeople may have variable overtime, prevailing-wage projects, scheduled raises, pension contributions, and other components of compensation.

Payroll records, union records, tax documents, employment history, and testimony can help establish the loss.

Loss of Future Earning Capacity

A permanent injury may prevent a worker from returning to the same trade even when the worker remains capable of doing some other type of work.

Loss of earning capacity addresses that difference.

The question is not simply what the worker was earning on the date of the accident. It is what the evidence shows the worker reasonably could have earned over the course of a working life compared with what the worker can earn after the injury.

This can be especially significant for a younger construction worker with a permanent orthopedic, neurological, brain, spinal, or limb injury.

Vocational rehabilitation experts and economists may be used to evaluate work restrictions, career trajectory, wage growth, benefits, and the present value of future losses.

Pain, Suffering, and Other Noneconomic Harm

A third-party claim can also seek compensation for the human consequences of the injury.

Depending on the evidence, noneconomic harm can include:

• physical pain;
• mental suffering;
• emotional distress;
• inconvenience;
• loss of enjoyment of life;
• disfigurement; and
• physical impairment.

These harms frequently overlap and should not be treated as a mathematical checklist. The purpose is to compensate the injured person for the noneconomic consequences the accident actually caused.

The evidence may include the injured person's testimony, family and friends, photographs, medical records, rehabilitation evidence, and specific examples of how daily life changed.

Workers' compensation does not provide an award for these noneconomic losses.

Permanent Impairment and Disfigurement

Some construction injuries permanently alter a person's body or function.

Amputation, paralysis, severe burns, traumatic brain injury, nerve damage, limited mobility, and visible scarring can affect nearly every part of daily life.

Permanent impairment and disfigurement are important aspects of noneconomic harm. They can also produce substantial economic damages when they affect future medical needs or earning capacity.

The strongest evidence is specific. Instead of merely labeling an injury "permanent," the case should show what the worker can no longer do, what now requires assistance, what causes pain, and how those restrictions are expected to continue.

Loss of Consortium

A serious injury can also damage a marriage or registered domestic partnership.

A spouse may have a separate loss-of-consortium claim for harm to the marital relationship, including loss of companionship, affection, assistance, and intimacy caused by the injury.

California law generally affords registered domestic partners the same state-law rights and protections as spouses.

Loss of consortium is a separate claim, and insurance policy language can affect how available limits apply to it. Our article on loss of consortium and policy limits in California examines that issue in more detail.

Punitive Damages

Punitive damages are different from compensatory damages.

Under California Civil Code section 3294, punitive damages may be available when clear and convincing evidence establishes oppression, fraud, or malice.

They are intended to punish and deter particularly wrongful conduct rather than compensate the injured person for a particular loss.

The standard is demanding. Ordinary negligence, even serious negligence, is not enough.

When punitive damages are sought against a corporation based on an employee's conduct, California law imposes additional requirements involving authorization, ratification, advance knowledge, or conduct by an officer, director, or managing agent.

Punitive damages therefore belong only in cases where the evidence actually supports them.

Compensation After a Fatal Construction Accident

When a construction accident causes a worker's death, eligible family members may have a wrongful death claim against a responsible third party.

Wrongful death damages are different from the damages available when the injured worker survives.

Depending on the circumstances, the claim may include losses such as financial support, household services, funeral and burial expenses, and the loss of the decedent's love, companionship, comfort, care, assistance, protection, affection, society, and moral support.

A separate survival claim may also exist for certain losses belonging to the decedent's estate.

Our guide to fatal workplace accidents explains the process, while our article on the types of damages in wrongful death cases addresses compensation in greater detail.

What Determines the Value of a Construction Accident Case?

There is no reliable formula for valuing a serious construction injury before the facts, medical evidence, liability evidence, and available insurance are understood.

Important factors include:

• Severity and permanence of the injury. Traumatic brain injuries, spinal cord injuries, amputations, severe burns, crush injuries, and other permanent conditions can create substantial lifetime losses.
• Future medical needs. A case involving future surgery, attendant care, rehabilitation, equipment, or home modifications is different from an injury expected to fully resolve.
• Impact on earning capacity. A permanent restriction that prevents a skilled tradesperson from returning to construction may create decades of lost earnings.
• Age and work history. These facts can affect the length and strength of a future earning-capacity claim.
• Strength of the liability evidence. Contracts, photographs, video, site records, safety plans, witness testimony, equipment inspections, and expert analysis may determine whether a third party can be held responsible.
• Cal/OSHA standards. Applicable safety standards can be important in determining the duties that governed the work. Our guide to California construction safety regulations explains those rules.
• Available defendants and insurance. A case involving several legally responsible entities may present different insurance and collectability issues than a claim against a single defendant.
• Product liability. Defective construction equipment can create claims against manufacturers, distributors, or others in the chain of distribution.
• Comparative fault. California follows pure comparative negligence. If an injured worker is assigned a percentage of responsibility, recoverable damages generally are reduced by that percentage rather than eliminated entirely.
• Employer fault. Even though the employer is generally protected from an ordinary negligence lawsuit by workers' compensation exclusivity, the employer's fault can still matter in the third-party case, including when workers' compensation reimbursement rights are being determined.

Falls from height, electrocution accidents, equipment failures, trench collapses, and other catastrophic jobsite events each present different evidence and liability issues.

Cal/OSHA Violations and a Third-Party Case

Construction projects are governed by detailed California occupational safety standards.

When an applicable safety standard was violated, the regulation may become important evidence concerning the conduct required on the jobsite.

But there is an important distinction.

Under California Labor Code section 6304.5, occupational safety statutes and regulations can apply under ordinary evidentiary principles, including Evidence Code section 669. The statute also generally provides that whether Cal/OSHA issued or failed to issue a citation is not admissible in a personal injury or wrongful death action except as between an employee and the employee's own employer.

The focus in a third-party case is therefore usually the safety rule itself, what happened on the site, which entity had the relevant responsibility, and whether the violation contributed to the injury.

A citation is not a substitute for proving the civil case.

What Does an Injured Worker Actually Keep From a Settlement?

The gross settlement or verdict is not necessarily the amount the injured worker ultimately receives.

The net recovery can be affected by workers' compensation reimbursement rights, medical or health-plan claims, attorney fees, litigation costs, and the particular structure of the resolution.

Understanding those deductions is part of evaluating a settlement.

The Workers' Compensation Lien

When an employer or workers' compensation insurer has paid benefits for an injury caused by a third party, California law gives it statutory rights to seek reimbursement.

Labor Code section 3856 establishes important rules when the employee obtains a judgment. When the employee prosecutes the action, reasonable litigation expenses and attorney fees attributable to producing the recovery are addressed before the employer's lien is applied.

Settlement reimbursement is governed by related provisions, including Labor Code sections 3859 and 3860.

The lien amount is not always as simple as adding up every workers' compensation payment.

One particularly important issue is employer fault.

Under California's Witt v. Jackson and later comparative-fault cases, an employer that contributed to the worker's injury may have its reimbursement or credit rights reduced or limited. The calculation can become complex because it depends on the employer's share of responsibility, compensation benefits, total tort damages, and the procedural posture of the case.

That can materially affect the worker's net recovery.

For that reason, a substantial workers' compensation lien should be analyzed rather than automatically accepted at face value.

Medical Bills, Provider Liens, and Health-Plan Reimbursement

Other reimbursement claims may also affect the recovery.

A medical provider that treated the worker under a lien agreement may assert a claim against the settlement.

Health insurers and government benefit programs may also have reimbursement or subrogation rights depending on the plan and the benefits paid. Medicare, Medi-Cal, ERISA plans, private health insurance, and provider liens do not all operate under the same rules.

Each claimed lien or reimbursement demand should therefore be identified, verified, and analyzed under the law that governs it.

Some claims may be subject to statutory reductions, contractual limitations, equitable arguments, or negotiated compromise.

Reducing a valid lien where the law permits can directly increase the client's net recovery.

Attorney Fees and Case Costs

Construction accident cases are generally handled by our firm on a contingency fee.

The fee is a percentage of the recovery agreed to in writing. Litigation costs can include filing fees, medical records, depositions, accident reconstruction, engineering analysis, vocational experts, economists, life-care planners, and other expenses required to develop the case.

The exact fee and responsibility for costs should be explained in the written representation agreement.

Our guide to contingency fees and costs in personal injury cases explains how the arrangement works.

Lump Sum or Structured Settlement

A catastrophic injury case may also require a decision about how settlement proceeds will be received.

A lump sum provides immediate control over the money.

A structured settlement can provide scheduled future payments and may be useful when the injured person has long-term medical or financial needs.

Federal tax law generally excludes compensatory damages received on account of personal physical injury or physical sickness from gross income, whether paid as a lump sum or qualifying periodic payments. Punitive damages and certain other components can be treated differently, so tax treatment should be evaluated based on the actual settlement.

The appropriate structure depends on the person's medical needs, age, financial circumstances, public-benefit issues, risk tolerance, and long-term goals.

The decision should be made before settlement documents are finalized.

Workers' Compensation and Third-Party Settlements Must Be Coordinated

A construction worker with both claims should not evaluate the third-party settlement in isolation.

The civil recovery can affect the workers' compensation carrier's reimbursement and potential credit rights. The workers' compensation case can also affect the amount of the lien and the worker's future benefits.

California's Labor Code contains specific notice and settlement rules governing the relationship between the employee, employer, carrier, and third-party case.

The interaction can become even more important when the employer itself contributed to the accident.

Coordinating the two cases can therefore affect not merely the gross settlement but the amount the worker ultimately keeps and the benefits available after the civil case ends.

Deadlines for Construction Accident Claims

Construction accidents can involve several different deadlines.

Most California personal injury actions based on negligence must be filed within two years under Code of Civil Procedure section 335.1.

If a public entity may be responsible, such as Caltrans, a city, county, school district, or another government agency, a personal injury claim generally must first be presented within six months under Government Code section 911.2. California has limited late-claim procedures, but they have separate requirements and deadlines.

Workers' compensation uses different limitation rules. Labor Code section 5405 provides a one-year limitations period measured from specified events that can include the date of injury, the expiration of certain benefit periods, or the last furnishing of certain benefits.

Other deadlines can also apply depending on the defendants and claims involved.

Construction projects frequently involve several layers of contractors, owners, equipment companies, and insurers. Identifying those entities can take time, which makes early investigation important.

Talk to Hulburt Law Firm About Your Construction Accident Case

A serious construction accident case is not simply about obtaining the largest possible gross settlement.

It is about identifying every legally responsible party, proving the full measure of the worker's losses, understanding how workers' compensation interacts with the civil case, resolving valid liens correctly, and maximizing the amount the injured person ultimately keeps.

Hulburt Law Firm handles serious and catastrophic third-party construction injury cases in San Diego and throughout California.

If you or someone you love was seriously injured on a construction site, our San Diego construction accident attorneys, Conor and Leslie Hulburt, can review what happened and explain your options.

Call (619) 821-0500 or send us a message through our contact form for a free, confidential case review.

There is no attorney fee unless we recover compensation for you.