By: Robert Baumgarten

My name is Robert Baumgarten and I am one of the construction accident attorneys here at Ginarte Gonzalez Winograd L.L.P. Today I would like to talk to you for a moment about scaffold and ladder accidents and the rights of workers who are injured in an accident while using a ladder or a scaffold at a work site. Under New Jersey Law, a worker injured while in the course of his/her employment usually has two potential claims. The first is a Workers’ Compensation claim against your employer, and the 2nd is a third party action against someone other than your employer. Although these claims overlap somewhat, they are brought separately and in different courts.

The purpose of the Workers’ Compensation claim is to provide the injured worker with coverage for medical expenses and reimbursement of lost wages. Notably, the Workers’ Compensation claim does not allow recovery for pain and suffering. On the other hand, one unique aspect of the Workers’ Compensation claim is that there is no requirement that fault or culpability be proven before recovery will be granted. It is simply enough to show that the worker was injured during the course of his or her employment, regardless of who was at fault. Payment of the benefits should start almost immediately after the accident and should continue until you are able to return to work. Also, the Workers’ Compensation claim is filled in the Workers’ Compensation court, with the cases decided by an administrative law judge.

The 2nd type of claim is the third-party action which is brought in the Superior Court of New Jersey. In this type of claim, we pursue damages for lost wages and medical expenses, just like in the workers’ compensation case, but here we are also seeking recovery for pain and suffering and derivative claims like the loss of consortium that one spouse experiences when the other spouse is injured in an accident. The difference between this third-party claim and the Workers’ Compensation claim is that here we need to establish that a third-party, someone other than your employer-caused your accident through their negligent conduct. The 2 types of claims are usually brought at the same time but proceed separately, and while the Workers’ Compensation claim is decided by an administrative law judge, the case brought in superior court will be decided by a jury.

An essential part of the third-party claim is proving liability against someone other than the worker’s employer. It is worthwhile to mention that there are rules and regulations governing the use of ladders and scaffolds at work sites in New Jersey. Generally, speaking, New Jersey follows the regulations enacted by OSHA, a federal agency dealing with worker safety. Those regulations require that ladders and scaffolds meet certain conditions before they can be used at a work site in New Jersey. They also require that there be a certain amount of training of workers to ensure that these devices are used in a safe and proper manner. While OSHA generally applies to the employer-employee relationship, the regulations have been interpreted to extend beyond that relationship so that a general contractor may be found liable in a third-party action for a violation of an OSHA regulation that caused the worker’s injury. In those types of cases, it is essential to prove that the general contractor knew or should have known of the dangerous condition that caused the accident but failed to correct that condition despite a reasonable opportunity to do so.

I would like to briefly discuss reimbursement of the monies paid by the workers’ compensation carrier. The law in New Jersey provides that if an injured worker receives Workers’ Compensation benefits the company paying those benefits is entitled to be reimbursed if the worker is successful in the third-party action. The purpose of this rule is to avoid a double recovery. As you may have noticed, in both the Workers’ Compensation claim and a third-party claim, damages include medical expenses and lost wages. Therefore, in order to avoid a double recovery of the medical expenses and lost wages, the law provides that the Workers’ Compensation carrier gets back the money it paid to the injured worker, less costs and expenses, which usually amounts to one third of the total.

I hope this brief talk has been informative, and that you walk away with more knowledge about your rights and remedies is an injured worker.