Going Up The Chain to Find a Responsible Party – Construction Site Injuries
With the increase in the development of data centers in Loudoun County and Western Fairfax, there is been a surge in commercial building construction. There is a lack of inventory in the residential sector, and people are finding it hard to buy houses and rent apartments in Northern Virginia while retail space is continuing to be built.
At ABRAMS LANDAU, the Workplace Injury Team has been confronted with several cases where a construction worker was badly injured or killed on the job. When the Team went to bring a claim for the Limited Worker’s Compensation benefits, they found that the disabled worker’s employer did not have compensation coverage!
While the claims could be made against the Virginia Worker’s Compensation Uninsured Employers Fund (UEF), they are defended by the Attorney General’s Office and can rarely agree to anything or productively settle cases that should be settled. So the ABRAMS LANDAU team will often go “up the chain.” “Going up the chain” means looking for a responsible party in the chain of the contract between the actually injured employee, their direct employer, the general contractor, and even the owner of the property where the injuries occurred and the construction was taking place.
Virginia Law allows you to go “up the chain” until you find a responsible party with insurance coverage to pay the claim. The owner or general contractor may then have a claim back against the subcontractor or direct employer, (but that involves another type of litigation). The ABRAMS LANDAU Team is concerned with finding coverage so that the injured and disabled worker can get prompt appropriate medical care, partial wage replacement, prescriptions filled, transportation, and other benefits allowed under the Virginia Workers Compensation Act. In fatal accident cases, Lawyer Landau looks for the responsible party to give the grieving family’s household vital income.
In cases where there is no insurance “up the chain,” a claim against the Virginia Uninsured Employers Fund is the appropriate procedure to take. Landau has had cases against the Virginia Uninsured Employers Fund and after successful hearings and benefit payments, the Fund will take action against the employer that should have had Worker’s Compensation Insurance coverage. Sometimes the Fund can take equipment or seek other assets. However, that is not Landau’s or his client’s problem, as they have an Order (§ 65.2-1202) through the Virginia Workers Compensation Commission that is enforceable.
Landau, like other responsible business owners, has Worker’s Compensation Insurance, which he pays for his employee’s protection. A percentage is paid to the Uninsured Employer’s Fund, which tries to maintain a surplus in anticipation of future claims.
One interesting aspect of uninsured employer cases is if there has been negligence, a lawsuit may be brought. Normally an employer, coworker, and general contractor, are “immune” from a lawsuit due to the “umbrella” of Worker’s Compensation coverage. However, an employer does not receive that protection if they do not have the Worker’s Compensation coverage that they should have when employing three or more full-time, regular workers within the Commonwealth Of Virginia.
In cases where the employer was negligent, such as where the boss runs over a worker’s foot, a lawsuit can be brought in addition to seeking Worker’s Compensation benefits against the employer. In those cases, because they did not have proper insurance, the defendants do not get the benefit of the lethal affirmative defenses of “contributory negligence” &/or “assumption of the risk.” In other words, the defendant is deprived of several defenses that are usually very helpful in defeating an otherwise meritorious worksite injury case.
If you, or someone you care about, have been injured on the job while working for an employer who did not have Worker’s Compensation Insurance, has become disabled through no fault of their own, or have any questions regarding worker’s compensation and personal injury law, please contact us at (703) 796–9055 or email frontdesk@landaulawshop.com.