Construction is one of the most dangerous jobs in America. The National Security Council (NSC) reports that from 2013 to 2020, the construction industry had the highest number of on-the-job deaths. The same report ranked the construction industry as the eighth most dangerous industry for non-fatal accidents and industries for 2020.
Unfortunately, construction injuries are often serious and may leave you out of work for weeks or months, to say nothing of the medical bills. You shouldn’t have to struggle financially simply because you did your job. At Auger & Auger Accident and Injury Lawyers, we’re dedicated to helping people injured in construction work find all possible options for seeking compensation. The workers’ compensation system is complex, and some workers may have difficulty accessing their benefits. In addition to workers’ compensation, there are some situations where the worker may have a claim against a third party. If you or a loved one have been hurt in a construction accident, please contact us for a free consultation to learn more about how to move forward.
The Workers’ Compensation System and Your Injuries
Workers’ compensation is a no-fault system for handling claims when a worker is injured on the job. Under South Carolina’s Workers’ Compensation Act, anyone who is hurt at work has a right to compensation for medical expenses, lost time at work, and benefits for permanent disability. There are several benefits to using the workers’ compensation system:
- You don’t have to prove fault, and neither does your employer. In non-work injury situations, most people would file a claim with the at-fault party’s insurance company or file a lawsuit. In both situations, you might be asked to prove that the injuries were not your fault. Workers’ compensation does not bar you from collecting benefits even if you were at fault, so you won’t need to spend time gathering evidence to prove your employer caused your accident (even if you believe they did).
- Because it isn’t necessary to prove fault, your claim may be approved faster. This is true in situations where your claim is approved without objection. However, there are some cases where the employer or their insurance company denies your claim on the basis of certain allowable reasons. (We’ll discuss these in detail in the next section.) If your claim is denied, there is a process to appeal the denial. We recommend seeking the assistance of an experienced Columbia construction accident attorney for help with claim denials.
- As long as you follow the guidelines for seeking medical care, your healthcare costs for a work-related injury should be covered. Again, there are sometimes situations where the employer or their insurer rejects a claim. Your lawyer will assist you in appealing this decision as well.
- You are eligible for workers’ compensation whether you are a part-time or full-time employee. Unlike other benefits such as health insurance, there is no minimum number of hours you must work to receive workers’ comp for a work injury.
Workers’ Compensation: What Isn’t Covered
While workers’ compensation is a streamlined system for providing financial support to injured workers, it does not cover every workplace injury situation. Here are some examples of circumstances where your injuries may not be covered and what to do in these cases:
Independent Contractors Are Not Included in Workers’ Compensation
Most employers with four or more employees must provide workers’ compensation insurance. Usually, they do this through an insurance company that handles workers’ comp claims, but a few employers may self-insure or maintain their own fund for workers’ comp claims.
However, independent contractors are not employees, and the Center for Construction Research and Training reports that about 23 percent of construction workers are independent contractors. Because independent contractors exist outside of the workers’ comp system, they can file a personal injury lawsuit against the business they performed work for if the business was negligent in some way that led to the injuries.
Misclassification of Independent Workers
But a lawsuit may not be your only option as a contractor. If you were hurt on the job without being a regular employee, we recommend speaking with an attorney before taking your next steps. The reason is that you may have been incorrectly classified as an independent contractor. Many companies make this mistake, and if you should have been categorized as an employee, you are entitled to workers’ compensation and other back benefits (like health insurance, retirement funds, etc.).
Defining the Difference Between an Independent Contractor and a Worker
Your lawyer may ask you questions to determine if there is evidence you are actually an employee and not a contractor. Here are some of the facts that will be considered if you file a claim against your employer for misclassification:
- How much control does the employer have over what the worker does and how they do it? An independent contractor is exactly that – independent. The client they work with will generally assign them a job to do, such as, “Build a new branch for my restaurant using these plans.” But the client won’t drive to the job site every day to supervise how the contractor pours concrete or installs drywall. The contractor will work on their own schedule with little to no supervision so long as the work is done by the deadline and to the client’s satisfaction.
- Does the employer control the business areas of your job, such as how often employees or subcontractors receive payment, reimbursement policies for supplies, or who provides tools for the job? If so, you may not be a contractor but an employee.
- Do you have an independent contractor agreement, and if so, what does it say? Sometimes employers believe that by having a worker sign a contractor agreement, the person is automatically a contractor. But this isn’t the case – if the worker is fulfilling the role of an employee, a judge may decide not to enforce that contract. Additionally, if the contract specifies benefits like health insurance or vacation days, that may indicate you are an employee.
- Is the work relationship continuous, and does the worker play a key role in the business? For example, building a new branch of a restaurant may certainly be important to the restaurant chain’s expansion, but once the building is ready to be opened, the contractor isn’t needed anymore. On the other hand, if you perform construction work for another contractor, they may need you for each new job they take on. If your work is continuous and essential to their business, you might be more like an employee than a subcontractor.
The IRS considers all of these factors if a worker raises a concern about whether they are a contractor or an employee. However, they also consider the “big picture” when making a decision. Even if one answer indicates the worker behaves more like an employee than a contractor, they may find this is not the case overall, and vice versa. For the purposes of a workers’ compensation concern, a judge will have to decide if the worker is an employee or an independent contractor. If your answers mostly indicate that you might be an employee, your lawyer will discuss with you the possibility of legally establishing your status so you can seek workers’ compensation.
What Does Workers’ Compensation Actually Pay?
Aside from medical expenses, workers’ compensation will pay two-thirds of your usual salary or average weekly pay, but this amount is capped at the average weekly wage in the state for the previous fiscal year. The South Carolina Workers’ Compensation Commission (WCC) maintains a table showing the current maximum rate of weekly compensation. At the time of this writing, the maximum weekly compensation amount is $963.37.
If your injuries result in a permanent disability that prevents you from working, you may become eligible for permanent total disability (PTD) or permanent partial disability (PPD). This is determined once your doctor says you’ve achieved Maximum Medical Improvement, or MMI. Typically this occurs after your doctors have exhausted all surgeries and treatment options for your condition and, in some cases, after you’ve spent a certain amount of time doing physical therapy.
After your doctor provides paperwork stating that you’ve reached MMI, your lawyer can help you file for permanent total disability or permanent partial disability. Permanent total disability is usually awarded in the following situations:
- When you lose the use of both hands, arms, shoulders, legs, feet, or hips
- If you’ve lost your vision in both eyes
- If you suffer a combination of at least two of the above losses
- When you lose 50 percent of the use of your back
PTD benefits are paid at the same rate as standard lost earning rates and are capped at 500 weeks, but in some situations of advanced disability, they may continue for life. These include when the worker becomes a paraplegic or quadriplegic or suffers certain physical brain injuries.
Permanent partial disability is decided using a concept called scheduled loss and is also paid at the standard lost earnings rate. If you have lost the use of a body part, South Carolina provides a schedule of how many weeks you will receive benefits based on the percentage of use lost. If your injury isn’t listed on the schedule, you will receive a “whole person impairment rating” or percentage. This percentage is taken from the whole of 500 weeks, so if your rating was 20 percent, you’d receive benefits for 100 weeks.
When Workers’ Compensation Is Denied
While the workers’ compensation system is sometimes swift, there are also situations where it may move slowly or require multiple appeals. Although the insurance company that handles your company’s workers’ comp claims can’t refuse your claim because the accident was your fault, there are a few reasons they’re allowed to deny it:
- If the injury isn’t work-related. Sometimes workers receive a denial for this reason even if the injury occurred at work. In certain situations, the worker’s boss or supervisor may have claimed the employee wasn’t at work at the time because they didn’t want their insurance rates to go up. Or, the supervisor may believe you had a preexisting condition or that your injuries aren’t as severe as you claim. In a case like this, you may need to provide more evidence or seek testimony from coworkers who witnessed what happened.
- You injured yourself intentionally. If the insurance company or your boss – both of whom benefit from not paying your claim – believe you hurt yourself on purpose, they may deny the claim on those grounds. Again you will need to provide evidence that your accident was indeed unintentional.
- You no longer work for the company where you were injured. Sometimes this occurs because the employee was planning to leave anyway. In other situations, they may have been fired for making a workers’ compensation claim. This is illegal, but unfortunately, it happens often. If you believe you were wrongfully terminated because you filed for workers’ compensation, please contact a Columbia construction accident attorney right away.
- You didn’t file your claim by the deadline. You should report your injury to your supervisor and seek medical attention as soon as possible after it happens. Under South Carolina law, your employer is then obligated to report the incident to the WCC. To make sure they don’t “forget,” check back with them after a few days and ask for a copy of the claim. Look it over to be certain all the information is correct.
- You were intoxicated at the time of the accident. Frequently employers will request blood tests right after an accident because of this possibility. If you have reason to believe the test results were inaccurate, please check with your attorney about options.
Third Party Claims
In most situations, you will not be able to sue your employer because state law directs you to use the workers’ compensation system. But if you were harmed by the negligence of a third party – such as someone from a different company or the maker of a defective piece of equipment – you are free to pursue a claim against that third party. If you’re unsure how your accident happened, your attorney will help you determine if anyone else might be liable.
Get Help with Your Construction Accident Case Today
The attorneys at Auger & Auger Accident and Injury Lawyers have nearly 50 years of combined legal construction injury experience. When you’ve been injured on the job site, you can rest assured we’ll fight for your right to compensation. We will work tirelessly to recover your damages under state law. You have rights, and our zero-fee guarantee means that you don’t pay unless we win your case.
Call (803) 470-5298. today for your free consultation, with no fees due until recovery!
