Healy Scanlon Law

This is the next of a series of columns on how the law can impact your life. Each month we will focus on various aspects of the law relating to personal injuries, those that happen both on-the-job and otherwise, including mishaps which occur in driving vehicles, using products and receiving medical care. The column will also respond to legal questions relating to personal injury that are sent to us.

Healy Scanlon Law Firm is comprised of eight trial attorneys, two of whom are from Ireland. We are located downtown at 111 West Washington Street, Suite 1425, Chicago, Illinois 60602 (800-787-5431 or 312-324-0409). www.HealyLawFirm.com . The firm concentrates in the representation of injured victims of all types of accidents.

Readers are encouraged to call or write with questions concerning personal injury law.

Summertime brings New Construction Projects

We are beginning to see increased activity in planning future construction projects and construction currently underway on our highways. For some, construction projects are a sign that the recent financial problems may be improving, and for others, it may be an opportunity to get back to work. With increased construction projects there is always an increased risk of accidents and injuries.

Constructions injuries on the highway

A lot of the construction that has begun in the Chicagoland area is highway construction. Our already congested highways have been further strained by decreased lanes in many areas and increased traffic due to construction workers. When lane configurations are changed from the usual pattern, a distracted driver may leave his lane of travel, possibly resulting in an accident.

The increased construction traffic can be dangerous for both drivers near construction sites and for construction workers on the highway. Remember that the Illinois vehicle code requires drivers to yield the right of way to any construction workers engaged in work on the highway. The speed limit is typically reduced in construction areas and stiff fines can be imposed for speeding in a construction area, especially when injury occurs.

Additionally, our legislature has already imposed some, and is always considering more restrictions on the use of cell phones, including text messaging, in construction areas.

The construction site itself can also be the cause of motor vehicle accidents. Vehicles entering or leaving the highway from a construction site can be the cause of serious accidents. These vehicles do not use typical entry or exit lanes, and thus can create a problem for other drivers. In one case filed by our office, a semi-truck abruptly stopped in traffic on the tollway in response to a signal by a flagger on a construction site to allow a truck to pull into one of the sites entrances. As a result, a vehicle behind the semi-truck also braked suddenly and was rear-ended causing significant injury.

If a construction company is negligent in controlling traffic around its work site and an accident results, the responsibility may flow to the construction company. The Illinois Department of Transportation, the Tollway Authority and other governmental entities have issued regulations and guidelines for construction companies operating near highway traffic. When an accident occurs near a construction site, these guidelines may determine whether the construction company is responsible.

Workers' compensation claims for highway construction workers

Construction workers also have a number of remedies if they are injured while working. Primarily, a construction worker who is injured while working has the right to file a claim pursuant to the Illinois Workers' Compensation Act. Under the Act, a worker is entitled to receive 2/3 of his average weekly wage, tax free, while he is unable to work. This is referred to as temporary total disability benefits, or "TTD."

A worker will also receive all reasonable and necessary medical care related to his injury, as long as he stays within the chain of physician referral. This medical care must be paid for out of the employer's workers' compensation insurance, and should not be processed through the employee's regular health insurance. Notably, the employee is not responsible for paying any co-pay to the doctors, hospitals or therapists who treat him.

Depending on the severity of an employee's injury, he will have other rights under the Act as well. If the employee is unable to return to his former occupation because of an injury, the employer may be required to hire a professional job counselor to help the employee find suitable work. If the only available work is at a lower rate of pay than the worker was earning before the accident, the employer may be responsible for paying 2/3 of the difference between the employee's current pay and his pre-accident pay. This is known as a wage differential. In the most extreme cases, where an employee is unable to return to any work in any capacity, he may be entitled to TTD benefits for the rest of his life.

Some benefits are limited by the Act. For instance, in most cases the employer will not be responsible for paying any "fringe benefits" for the employee, such as health insurance, union dues or pension benefits. Also, if the employer can accommodate the employee's physical restrictions, the employee must accept modified work from the employer.

For example, after an injury many employees are returned to work but the doctor tells the employer that the employee can only lift up to a certain weight restriction, such as ten pounds. For construction workers, this will likely mean they will be unable to return to their old job. However, the company may still take the employee back to work in a modified capacity, and give him a job as a watchman or a flagger. In most situations, the company can even change the shift or hours that an employee works. What the company cannot do is change the rate of pay the employee receives. It must either pay the employee is old wage, or pay a differential as described above.

Injured workers' may also have other claims

In addition to workers' compensation claims, an injured construction worker may have other claims. For instance, if a construction worker is struck by a car while working, he will have a workers' compensation claim against his employer as well as a potential lawsuit against the driver who struck him.

A common situation arises on a jobsite with multiple contractors. When an employee of one contractor is injured because of the negligence of another contractor, the employee may be able to file a lawsuit against the other contractor. Often times this occurs when one contractor negligently leaves debris or material out on a jobsite, causing an employee of another contractor to fall and sustain injury. Likewise, this situation presents itself when one contractor fails to secure building materials properly. If a worker is subsequently injured because of falling materials, a lawsuit may be a possibility.

Furthermore, the general contractor on a jobsite may be responsible for overall safety and cleanliness at a construction site, and may also be liable if a subcontractor negligently creates a dangerous condition.

However, a lawsuit generally will not be available when one employee is injured because of the negligence of another employee from the same company. Under that circumstance, an employee's "exclusive remedy" is a workers' compensation claim.

Conclusion

Although none of us enjoy sitting in construction traffic, construction is a way of life and a vital necessity to our economic development. Unfortunately, with construction can come dangerous situations. As can be seen from just this brief description, who is at fault for these accidents, and what an injured person is entitled to as a result of these accidents, is dependent on the factual situation of each case. If you are injured as a result of a construction accident you should contact an attorney as soon as possible to discuss what benefits may be available to you.

By: Martin Healy, Jr.

Dennis M. Lynch