Construction Site Injuries That Aren't Covered by Workers' Compensation

It seems so obvious: you went to work, got injured while at work, and are ready to file a workers’ compensation claim. Not so fast. Life is rarely that simple and straightforward. Construction sites are active and busy places with people coming and going all of the time. The problem with this is that someone other than your employer may be responsible for your injuries. If that’s the case, workers’ comp may not cover your injuries. Thankfully, that’s not the end of the road. You may be able to file a third-party claim for a construction accident not covered by workers’ comp in Illinois.

Key Takeaways

• You may have more recovery options beyond workers’ compensation.
• A general contractor may be liable for your construction injuries.
• A successful third-party claim can provide damages that workers’ compensation doesn’t.
• Determining who caused the accident can be just as important as determining who employed you.
• Your own negligence can affect your third-party claim.

What Workers' Comp Covers on a Construction Site

Workers’ compensation is the go-to remedy for employees injured while on the job. It’s a no-fault system that allows employees to make a claim and hold the employer accountable. In Illinois, workers’ compensation is covered under 820 ILCS 305/5(a). The coverage is broad. Employees don’t have to prove that the employer did anything wrong.

There’s a trade-off for pursuing recovery through the workers’ comp system. Your recovery amount is capped. You also can’t seek pain and suffering, full lost wages, or loss of normal life damages.

What Happens When the Injury Itself Isn't Covered by Workers’ Comp at All

Several situations can cause a workers’ compensation claim to be rejected. One of the most common reasons a construction accident is not covered by workers’ comp in Illinois is worker misclassification. A business can’t just call someone an independent contractor, and that is good enough. The construction industry is notorious for this. It’s tempting for the business, because workers’ comp only covers employees, not independent contractors. Thankfully, employees can challenge their classification. If the independent contractor status is accurate, then workers’ comp won’t apply. Pursuing a negligence claim is the only option.

Another common situation is intoxication. We all know that alcohol and construction sites don’t mix. That doesn’t stop people from drinking before or during work. Doing so has consequences. Under 820 ILCS 305/11, there’s a rebuttable presumption that a blood alcohol level of 0.08% or more, or evidence of unlawful drug impairment, is the proximate cause of the injury. The result is that the injured construction worker may be barred from making a claim. The presumption is rebuttable, though. If the worker can present evidence to the contrary, then they can overcome the presumption and pursue their claim.

Another common situation is when the injury occurred outside of the worker’s scope of employment. They could have left work to run errands unrelated to the job. They could have been on the jobsite, but engaging in conduct that is clearly outside of their job duties. These injuries are generally not covered by workers’ comp.

The Real Construction-Specific Issue: Third-Party Claims

Under 820 ILCS 305/5(b), workers’ comp isn’t the only option for an injured construction worker against their direct employer. When someone other than their direct employer is liable, the injured worker can file a negligence lawsuit. To make matters more complicated, there may be situations where the worker seeks a workers’ comp claim and a negligence claim against different people. The law doesn’t stop them from doing so.

There’s a constant flow of vendors and subcontractors coming and going from the construction site. All of those different people create plenty of opportunities for third-party claims:

• Somebody could have left hazardous materials lying around on the jobsite.
• Rented equipment could malfunction from not being properly maintained.
• The property owner failed to address a known dangerous condition.
• The architect could have left a design flaw in the plans.

If a worker decides to pursue a workers’ comp claim and a negligence claim, they may have to reimburse their employer. It’s likely that the employer will pay out on the workers’ comp claim before the negligence claim is completed. If the negligence claim is successful, the employer can seek reimbursement from the worker. That way, the worker doesn’t benefit twice and essentially profits from the injury.

Is the General Contractor a Third Party, or Immune Too?

Generally, contractors aren’t typically considered liable for the actions of the subcontractors and other parties on the jobsite. Their name may be on the sign at the jobsite, but that doesn’t mean they are accountable for someone else’s negligence. Except that sometimes they are. Sometimes, a general contractor is liable for a subcontractor’s actions under a legal theory called vicarious liability. This can happen when the general contractor is negligent and hires an uninsured subcontractor. When an injury happens and the subcontractor is liable, the liability passes to the general contractor.

Another important factor to consider is how much control the general contractor had over the jobsite. Some general contractors have very little control, while others dictate how everything is performed. The court established this threshold in Larson v. Commonwealth Edison Co. to further define Restatement (Second) of Torts § 414. Don’t take this as absolute, though. Not every general contractor who supervises a site is now automatically a defendant. Carney v. Union Pacific Railroad Co. is another important case that helped shape common law. The court’s opinion in this case better defined § 414. Just being present at the jobsite isn’t enough. The analysis focuses on the contract terms and actual jobsite conduct. General contractors are liable for their own hiring negligence, not the negligence of an independent contractor.

Why the Difference Actually Matters

There are benefits and drawbacks to each type of claim for recovery. The type of claim a worker will pursue is highly fact-specific. An attorney experienced with workers’ comp and negligence cases can be a valuable asset, especially in cases where a construction accident is not covered by workers’ comp. They can analyze the facts and evidence of the incident. From there, they can recommend the best course of action for a worker. While a workers’ comp claim may be faster, it also limits the total amount recoverable. A negligence claim could take longer, but gives the opportunity to seek a greater recovery. However, either claim is dependent on accurately identifying the responsible party.

Recovery isn’t guaranteed in a personal injury claim. Illinois follows the comparative negligence rule for construction accidents not covered by workers’ comp. It applies in a third-party lawsuit. Under 735 ILCS 5/2-1116, the worker is barred if their own fault is more than 50%.

Contact a Chicago Workers' Compensation Attorney

Getting injured on a construction site doesn’t always have a clear path for compensation. The first task is to figure out who is responsible. This will help determine if a workers’ comp claim is appropriate. If other parties are responsible, then a negligence claim may be appropriate. An experienced lawyer can help you figure out what to do next. If you may have a third-party construction accident in Illinois, Stephen Hoffman can review what happened and explain where you may have a claim. Contact the office or call (773) 944-9737 for a free consultation or learn more about workers’ compensation.