San Diego Construction Accident Lawyers

There were 29,100 non-fatal construction accident injuries in California in 2019. Specialty trade contractors like plumbers and HVAC contractors had the highest injury rate among all construction workers and accounted for 21,500 on the job injuries. Trade workers are often exposed to the greatest number of hazards including working from heights, electrical hazards, and trench work.

Of the 451 workplace deaths in California in 2019, 80 were in construction. Nationwide, construction worker deaths increased in 2019 to the highest number since 2007 with 1,008 construction workers killed on the job.

There’s no doubt that a construction job site has inherent dangers. A San Diego construction accident can result from any of the following common causes:

• Inadequate supervision. Supervisors are an important line of defense to ensure the safety of construction workers.
• Lack of safety gear. When construction workers are not provided with adequate safety equipment or fail to use it, it can lead to injuries that could have been avoided. This includes personal protective equipment like hardhats, gloves, eye protection, and hearing protection.
• Machine failure due to defects, malfunction, or inadequate maintenance. When equipment, machinery, or tools malfunction or fail, it can lead to catastrophic injuries.
• Lack of fall protection. This is a leading cause of falls, the most common cause of fatal work-related injuries in San Diego construction sites, particularly accidents involving scaffolding.
• Lack of safety guarding of machinery. This can lead to injuries when material strikes workers or they are caught in machinery.
• Faulty electrical systems or design which can lead to electrical shock or electrocution.
• Communication failures. The second-most common OSHA safety violation on construction sites? A lack of hazard communication. This can involve providing workers with information about hazards and labeling hazards and chemicals.
• Inadequate lookout. A San Diego construction accident is sometimes the result of workers who are simply careless or fail to pay close attention to their surroundings. This can lead to a fall from scaffolding, a roof, or into a trench. It can also cause an injury while backing up or operating equipment as well as slip and fall accidents.
• Insufficient training. Sadly, many construction workers are injured operating equipment or performing tasks they were not trained to do safely and correctly. Training is also crucial to help workers recognize potentially hazardous conditions.

While not all San Diego work-related injuries on a construction site can be avoided, many are the result of negligence or human error. An already inherently dangerous work site can be even more risky when there are safety violations. Workers may rely on equipment, tools, or even protective gear that fails when it is not properly maintained or there are defects. Construction workers can also contribute to or cause accidents due to inattention, improper use of equipment and gear, or negligent operation of tools and equipment.

After your accident, it’s crucial to conduct a thorough investigation. Your San Diego construction accident attorney will explore how and why your accident happened. Depending on the cause, multiple parties may share responsibility which can give you additional avenues for compensation.

Who Can Be Held Liable for Construction Accident Injuries?

After a San Diego construction accident, you have two potential avenues for seeking compensation:

• Workers’ compensation
• Third party lawsuit

In almost all cases, your employer cannot be held liable for your work-related injuries. Your primary course of remedy is workers’ compensation. However, if someone other than your employer caused your accident through intentional wrongdoing or negligence, you may have a separate personal injury claim under third party liability.

California Workers’ Compensation Insurance

California Labor Code Section 3700 requires all California employers to provide workers’ compensation benefits for employees. All employers must provide benefits if they have at least one employee.

After a San Diego construction accident, workers’ compensation is your sole remedy against your employer. This no-fault system offers guaranteed benefits without requiring that you prove anyone was negligent. You can recover workers’ comp even if you caused your accident with few exceptions. However, you are barred from suing your employer for your injuries, even if their negligence caused your accident except in some cases.

Third Party Liability

Injured construction workers may be entitled to additional damages not available through workers’ compensation by pursuing a claim against negligent third parties. When a third party, or anyone other than your employer, caused your accident, you have the right to bring a separate claim.

Multiple parties may share liability for on-the-job accidents in San Diego:

• Other contractors or employees due to carelessness, negligence, or intentional wrongdoing
• Equipment manufacturers due to defects
• Material suppliers
• Architects or engineers

Sometimes San Diego construction accidents are caused by the negligence of someone not even connected to the scope of the work. Outside of the parties listed above, San Diego third party liability claims for a construction accident often involve traffic accidents.

For instance, if you were driving a vehicle on the job site or during the scope of your work and you were hit by a negligent driver, they may be held liable for your injuries. These cases often involve road construction sites when distracted drivers strike construction workers near the road.

Unlike workers’ compensation, which is a no-fault system, pursuing a third-party lawsuit requires proving the other party was negligent.

Can You Sue Your Employer for a San Diego Construction Accident?

Labor Code Section 3600 generally makes workers’ compensation your only remedy against an employer for California work-related injuries. There are exceptions to this rule, however.

Employer Did Not Have Workers’ Compensation Insurance

If your employer did not have workers’ compensation insurance, they can be sued for damages resulting from construction site accidents. In this case, an injured worker can still file for workers’ compensation benefits and sue their employer. An employer will have difficulty defending a civil lawsuit once it is shown they did not carry required workers’ comp coverage.

If the employer cannot pay for the injured workers’ benefits, workers are protected by the Uninsured Employers Benefits Trust Fund (UEBTF). This is a state agency that pays for benefits for workers employed by employers who were illegally uninsured.

An experienced San Diego construction accident attorney can help with pursuing benefits through the UEBTF, a process a bit more complicated than workers’ compensation.

Employer Engaged in Serious, Willful Misconduct or Intentional Harm

Even if an employer’s negligence caused a work-related injury in San Diego, workers are still limited to workers’ compensation benefits outside of third-party claims. However, workers can sue their employer for intentional harm.

If a worker’s injuries were caused by an employer’s “serious and willful misconduct,” the gross negligence can essentially be considered intentional harm. This requires showing that the employer was aware of a dangerous condition, knew that the conditions were likely to cause serious injury, and intentionally failed to correct the hazard. Forcing employees to work in a site that does not meet safety regulations and refusing to provide protective equipment can both qualify.

What Damages Can an Attorney Help Me Recover from a Construction Accident Injury?

After an on-the-job accident, you are almost always entitled to workers’ compensation benefits. Workers’ comp provides no-fault benefits to compensate you for your lost earnings, medical bills, temporary or permanent disability, and more. However, you cannot recover money for non-economic losses through workers’ compensation. This includes pain and suffering, mental anguish, and more.

If your accident involves third party liability, personal injury cases against the negligent parties can help you bridge the gap between your actual losses and what you can recover through workers’ compensation.

Types of Workers’ Compensation Benefits

Through a workers’ compensation claim, you may recover the following types of benefits for your injuries.

Medical and hospital benefits

This covers reasonable treatments related to your injury. This includes physical and occupational therapy, chiropractic and acupuncture treatment, medical care, surgical care, medical devices, prosthetics, nursing care, and prescriptions.

Workers’ compensation medical benefits generally continue until you are released from a doctor’s care. You are entitled to have your medical expenses related to your injury covered for life, whether you are able to return to work or not. If you suffer a traumatic brain injury or catastrophic injury, for instance, your medical needs may continue for many years.

Temporary disability benefits

This replaces lost wages for a specific period of time. These benefits require missing at least 3 days of work. Temporary disability benefits replace two-thirds of your lost wages up to a maximum weekly amount. The minimum and maximum amount for disability benefits are based on the State Average Weekly Wage which is $1,383 for 2022.

The temporary total disability (TTD) minimum is $203.44 per week for 2022 with a maximum of $1,356 per week.

Temporary partial disability (TPD) is calculated based on the wages you lose from hours you cannot work. The amount you can earn is considered.

Temporary disability benefits are limited to 104 weeks within a 5-year time period except for certain injuries and conditions.

Permanent disability benefits

This replaces lost earnings if you cannot work due to permanent disability. The amount of disability benefits you receive is based on your earnings, age, and impairment rating.

The higher the disability rating you receive, the higher the benefits you collect and the longer you can receive benefits. If you are 100% disabled, you are entitled to weekly payments for life. Disability ratings between 70% and 99% also entitle you to a life pension. Once you receive the maximum weekly disability benefits, you receive an additional amount for life.

Supplemental job displacement benefits

This compensates you if your employer can’t offer alternative or modified work after you are classified as permanently disabled. This benefit is a flat $6,000 and can be used toward job training, certification, equipment, licensing, and other expenses to get a new job.

Damages Available in a Personal Injury Lawsuit

An experienced San Diego accident attorney will help you explore whether third party liability entitles you to also pursue a personal injury claim. You may recover additional damages through a personal injury lawsuit including:

• Lost wages to recover 100% of your lost earnings. Workers’ compensation caps benefits at 2/3 your weekly wages. A weekly dollar amount cap may also be lower than the amount of lost earnings you are suffering. A personal injury claim allows you to make up the difference between your prior earnings and workers’ comp benefits.
• Pain and suffering
• Emotional distress
• Mental anguish
• Loss of enjoyment of life
• Disfigurement (this is considered by workers’ compensation in determining a permanent disability rating, but this may still fail to fully compensate you for scarring and disfigurement)

Note that California law bars double-dipping. If you recover compensation through a third party claim, your employer is entitled to be reimbursed from the settlement or verdict for the lost wage and medical benefits you were paid.

The two-thirds of your average weekly wages may not be enough to give you the quality of life you enjoyed before your accident or cover your bills. This is why it’s important to consult with an experienced San Diego construction accident attorney to explore other avenues to recover compensation if your accident involved third party negligence.

Damages for Survivors After a Fatal Construction Accident – Wrongful Death Damages & Workers’ Compensation

Have you lost a loved one due to a fatal construction accident? There are two ways to recover damages for the loss of your loved one.

Workers’ compensation pays death benefits to a worker’s spouse, children, and dependents after a death due to a work-related illness or injury. Death benefits include burial expenses up to $10,000 and an amount based on the number of partial or total dependents. The death benefits range from $250,000 for one dependent to $320,000 for three or more dependents.

If a third party other than the worker’s employer was negligent and caused their fatal accident, surviving family members may also bring a wrongful death action against the negligent party. A “survival” cause of action can also be brought as a separate claim. Damages available in wrongful death and survival actions include:

• Final expenses
• Income the decedent would have earned
• Household services the decedent would have provided to the family
• Loss of gifts and benefits heirs would have received
• Loss of companionship, affection, protection, sexual relations, moral support, and guidance
• Pain and suffering in some survival action cases

Independent Contractors & Workers’ Compensation in California

Under California labor law, independent contractors do not have the right to workers’ compensation. Construction workers who are independent contractors can sue their employers for construction accident injuries, but this can be a complicated issue.

Construction contractors and subcontractors frequently try to classify workers as independent contractors and subcontractors to avoid workers’ compensation premiums and other costs. A National Employment Law Project study on misclassification found that the construction industry has one of the highest rates of independent contractor misclassification.

Fortunately, California law protects construction workers from misclassification.

California Labor Code § 2750.5 has two presumptions that a worker is an employee, not an independent contractor.

In the construction industry, Labor Code Section 2750.5 as well as the Borello test are used to determine if someone working under a subcontract is an employee of the contractor.

California’s AB 5 statute, passed in 2018, further expanded protection by holding that most wage-earning workers in California are employees and the burden is on the employer to prove someone is an independent contractor.

If your workers’ compensation claim is denied because you are classified as an independent contractor, a San Diego construction accident lawyer can help.

What to Do if You Have Been Injured in a Construction Accident

After a workplace accident, it’s critical to take certain steps as soon as possible. This not only ensures you receive the prompt care you need but protects you if you need to file a claim for compensation. Take the following steps after you are injured in a San Diego construction accident.

#1. Notify your employer

As soon as possible, notify your employer of your accident or incident. Reporting your injury or condition to a supervisor or foreman documents the accident, notifies your employer of potential unsafe conditions, and protects you if you need to file a claim.

Your employer should be notified in writing within 30 days of your injury. There are some exceptions to this deadline, such as occupational illness or injuries that are not acute but develop over time. If you delay reporting a work-related injury or accident to your employer, they may not be required to provide workers’ compensation.

#2. Seek medical care

The next step is seeking prompt medical attention right away. This step, of course, should be done first if your injury is very serious or an emergency. Your employer must post the medical care network (MPN) it uses to treat injured workers.

When you receive medical care, be sure to inform the physician that your injury is work-related.

Getting prompt medical care doesn’t just ensure you receive the treatment you need to potentially reduce the risk of long-term complications, it also documents your injury and connects it to your work-related accident. A delay in treatment can make it hard to prove your injury was actually sustained on the job. It may also make it easy for an insurance company to minimize the severity of your injury.

#3. Document your incident

Once you are able to, take steps to document your accident, injuries, and anything that may have contributed to your incident. If necessary, ask a coworker to take photos of unsafe conditions that caused your injury or the scene of your accident. Write down the names and contact information for anyone who witnessed your accident.

You should also keep a journal to write down everything you remember about your accident before your memory fades and to track the treatments you receive, the pain and impairment you suffer, how your injuries affect your daily life, and how your treatment and recovery progresses.

#4. Contact a construction accident lawyer

After beginning medical treatment, you will need to submit a claim form. Your employer is required to provide a claim form within one day of a reported injury. This form is returned to your employer to begin the workers’ compensation process.
It’s a good idea to consult with a San Diego construction accident lawyer even before you submit your claim form, however. Your lawyer can assist with investigating your accident, filing the necessary paperwork, and ensuring your claim is as strong as possible from the beginning.

#5. Be aware of important deadlines

There are several critical deadlines that impact the steps you must take after an on-the-job accident. Missing these deadlines can weaken your case or make you ineligible for benefits and compensation. Important deadlines include:

• 30-day deadline to report your injury to your employer. For cumulative trauma or occupational illness, you must give notice when you find out your injury was caused by your job.
• 1-year statute of limitations to file a workers’ compensation claim. This statute of limitations begins on the date of your injury or when you know or should have known the injury was caused by work.
• 2-year statute of limitations for personal injury cases and wrongful death claims resulting from third-party liability.

Common Questions About Construction Accident Liability

Who can seek compensation for injuries?

Almost all construction workers are eligible to seek workers’ compensation benefits for on-the-job injuries. Independent contractors can seek compensation when their work-related injuries were caused by someone’s negligence. Surviving family members of injured workers can seek compensation for their losses through workers’ compensation and wrongful death actions.

What compensation can I recover as an injured San Diego construction worker?

An injured worker can recover workers’ comp benefits for medical care, lost earnings, disability, disfigurement, and job displacement. Personal injury cases related to third-party liability allow injured workers to recover compensation for non-economic losses like pain and suffering.

Can a construction worker sue his employer after suffering a worksite injury?

There are very few circumstances that allow injured construction workers to sue their employer. An employer can be sued if they did not have required workers’ comp insurance, caused intentional harm, or engaged in serious, willful misconduct that caused a workplace accident. Independent contractors can sue an employer if their negligence caused an injury.

Who pays for my damages if I’m injured in a San Diego construction accident?

California employers must provide workers’ compensation benefits for injured workers through workers’ compensation insurance or being self-insured. If your employer did not have coverage for your workers’ compensation benefits, you can recover your damages through a state fund. The only way to recover damages outside workers’ compensation for a construction accident is through a third-party personal injury lawsuit against someone other than your employer whose negligence or wrongdoing caused your accident.

Can family members receive compensation when a worker dies in California?

Yes, surviving family members are entitled to death benefits through workers’ compensation. When workers die due to work-related injury or illness, dependents can recover compensation for burial expenses plus weekly death benefits up to a limit.

How much does it cost to hire a construction accident lawyer?

The San Diego accident lawyers at Berman & Riedel, LLP work on a contingency fee basis. You pay nothing out-of-pocket for legal representation to pursue workers’ compensation benefits and damages through a personal injury lawsuit. You only pay attorney’s fees if and when we secure a settlement or verdict on your behalf.

What kind of construction injuries do San Diego construction accident lawyers handle?

Berman & Riedel, LLP handles all types of San Diego construction accident cases, including those that result in catastrophic injuries, permanent disability, and wrongful death. Common construction accident injuries our clients have sustained include traumatic brain injuries, spinal cord injuries, amputation, toxic exposure and cognitive or neurological impairment, vision loss, hearing loss, orthopedic injuries and fractures, back injuries, burns, electrical shock, and more.

What can I do if my employer refuses to address dangerous conditions at a San Diego construction site?

While construction sites are inherently dangerous, construction companies, like other employers, must provide a workplace that is as safe as possible and free of recognized hazards. Employers have a duty to ensure employees have and use safe equipment, establish comprehensive hazard communication, provide proper safety training, and more.
If dangerous conditions are not being addressed by your employer, you can report it to the California Division of Occupational Safety and Health (Cal/OSHA). After filing a complaint, OSHA can perform an on-site or off-site inspection.

Contact a San Diego Construction Accident Lawyer at Berman & Riedel, LLP for a Free Consultation

What should I do if I’ve been in a construction accident? How will I pay my bills when I can’t work? What can I do when my workers’ compensation claim is denied or I’m being treated unfairly? These are just some of the questions you may be asking yourself.

At Berman & Riedel, LLP, we understand the devastating nature of construction site accidents and how overwhelmed you may be in the aftermath. You may have many questions and feel unsure where to turn for the help you need.

Our San Diego construction accident lawyers are here to give you the aggressive legal representation you need to protect your rights, fight for fair compensation, and hold the responsible parties accountable. You deserve to focus on recovering and how you will move forward, not fighting an uncaring insurance company.

Contact Berman & Riedel, LLP today to schedule your free consultation with a San Diego construction accident attorney who will help you explore your options and begin pursuing the full compensation you need.