Construction Accident Injury

Published on: January 29, 2013

In New York, to establish a prima facie case of negligence

by Stephen Bilkis

In New York, to establish a prima facie case of negligence, a plaintiff must prove (1) that the defendant owed a duty to plaintiff, (2) a breach thereof, and (3) injury proximately resulting therefrom. If, defendant’s negligence were a substantial factor, it is considered to be a “proximate cause” even though other substantial factors may also have contributed to plaintiffs. In order to establish the third element, proximate cause, the plaintiff must show that defendant’s negligence was a substantial factor in bringing about the injury. Because a finding of negligence must be based on the breach of a duty, a threshold question in tort cases is whether the alleged tortfeasor owed a duty of care to the injured party. Summary judgment is rarely appropriate in a negligence action because the issue of whether a plaintiff or defendant acted reasonably under the circumstance could rarely be resolved as a matter of law.

If it cannot be determined who the parties are who owed a duty to the plaintiff and what the defendants’ respective roles and responsibilities were, no determination as to negligence can be made based upon the evidentiary submissions and adduced testimonies.

Labor Law §200 provides in pertinent part that “All places to which this chapter applies shall be so constructed, equipped, arranged, operated and conducted as to provide reasonable and adequate protection to the lives, health and safety of all persons employed therein or lawfully frequenting such places…. (Trbaci v AJS Construction Project Management, Inc, et al, 2009 NY Slip Op 50153U; 22 Misc3d 1116A [Supreme Court of New York, Kings County 2009). “New York State Labor Law §200 is merely a codification of the common-law duty placed upon owners and contractors to provide employees with a safe place to work (Kim v Herbert Constr. Co., 275 AD2d 709, 880 NYS2d 227 [2000]). In order to prevail on a claim under Labor law §200, a plaintiff is required to establish that a defendant exercised some supervisory control over the operation (Mendoza v Cornwall Hill Estates, Inc., 199 AD2d 368, 605 NYS2d 308 [2nd Dept 1993]). Labor Law §200 governs general safety in the workplace, imposes upon employers, owners, and contractors the affirmative duty to exercise reasonable care to provide and maintain a safe place to work and is a reiteration of common-law negligence standards. Therefore, a Staten Island party charged with liability must be shown to have notice, actual or constructive, of the unsafe condition and to exercise sufficient control over the work being performed to correct or avoid the unsafe condition (Leon v J&M Pepe Realty Corp. et al, 190 Ad2d 400, 596 NYS2d 380 [1st Dept 1993]).

Published on: January 22, 2013

Claimant was employed as a housekeeper at a Mental Health Center

by Stephen Bilkis

Claimant was employed as a housekeeper at a Mental Health Center. She held the job for approximately three years until she was injured on 27 January 1993. While at work and engaged in the duties of her job on the premises of her employer, claimant suffered a knee injury. She squatted to lift a bag of laundry off the floor of the laundry room and felt immediate pain in her right knee. It turns out that she sustained a tear of the lateral meniscus in that knee. Thereafter, the Judge of Compensation Claims ruled that the injury was idiopathic and not compensable because the claimant failed to prove that her employment involved an exertion greater than that performed during her daily life. The Suffolk Judge issued a worker’s compensation order denying compensation. According to the order, the claimant did not fall, twist, lose her balance or experience any other unusual movement, and the claimant’s injury was idiopathic and did not arise out of the claimant’s employment because her employment did not expose her to any greater risk than she experiences in her everyday life and to which the population as a whole is exposed. The claimant then filed an appeal from the said order.

Under the law, for an injury to be compensable it must arise out of one’s employment and must occur in the course and scope of that employment. Here, the employer and carrier have conceded that the spinal injury to the claimant occurred in the course and scope of her employment, while performing her job duties on the employer’s premises. The question now is whether the injury arose out of the claimant’s employment.

As a rule, an unexpected injury sustained during the ordinary performance of one’s duties in the usual manner is a compensable accident and it is not necessary for the claimant to demonstrate that there was a slip and fall accident or other mishap. The term “accident” includes an internal failure such as a ruptured disc or a snapped knee cap. Here, the court finds that it was sufficient for the claimant to prove that her spinal injury occurred in the period of her employment and at a place where she would reasonably be, while fulfilling her duties, to establish that her accident arose out of, and occurred in the course and scope of her employment,. The “arising out of” prong of this test is satisfied by evidence that the injury originated in some work connected with the employment, that is, the claimant must show that his injury can be attributed to some event or circumstances connected with his work. Based on the facts and evidence presented, the claimant has done this. Staten Island Claimant produced evidence that she was squatting to pick up a bag of laundry which is one of her job duties.

Published on: January 18, 2013

Claimant, 49 years of age, worked in various positions

by Stephen Bilkis

Claimant, 49 years of age, worked in various positions at the employer’s saw mill, most recently as a millwright. Every position he held during his 24-year career involved arduous physical labor, including heavy lifting on a daily basis. Sometime in March 1998, claimant began experiencing pain in his hip and leg. He did not identify any specific incident that caused the pain, but pointed to a number of his job duties that involved heavy physical labor. According to the Queens claimant, the pain developed gradually. After learning from his family physician that the pain related to a back condition or back injury, claimant sought compensation benefits. The employer and carrier or E/C completely denied the claim, including the request for a medical treatment. On 29 April 1998, claimant came under the care of doctor-A, who is an orthopedic surgeon, who placed him on a no-work status. After testing, physical therapy, and consultation with another doctor, doctor-B who is a neurosurgeon, doctor-A diagnosed lateral recess stenosis with degenerative disk disease and L3-4 herniated disk. Thus, claimant filed a claim under the worker’s compensation for compensation benefits. Thereafter, the judge of compensation claims or the JCC, in resolving the claim for compensation benefits, found the stenosis compensable under a repetitive trauma theory based on claimant’s and doctor-A’s testimony, and concluded that claimant’s heavy lifting and repetitive bending while working for the employer over the course of more than 20 years ca

There are two issues raised by the E/C on appeal, viz: first, that the judge of compensation claims (JCC) erred in deciding that claimant provided timely notice of his work injury; and, second, that claimant suffered a compensable accident under a repeated trauma theory. On the second issue, E/C contends that the only competent, substantial evidence (CSE) established that claimant’s non-compensable herniated disk combined with his preexisting lateral recess stenosis to cause his disability and need for treatment, and no evidence was presented that the employment was the major contributing cause of same.

The court finds that CSE supports the JCC’s determination of the first issue. And, on the second issue, after applying the limited standard of review of CSE, the court finds it proper but not for all of the reasons mentioned. First, there was no burden on claimant to prove that the stenosis was the major contributing cause of the disability. The stenosis is not a preexisting condition and there was only one cause, rather than multiple causes, of claimant’s disability and need for treatment. Second, a combination of the evidence, both lay and medical, supports the JCC’s determination that the employment caused claimant’s disability and need for treatment.

Published on: January 5, 2013

This action was commenced by a man to recover damages for personal injuries

by Stephen Bilkis

This action was commenced by a man to recover damages for personal injuries allegedly sustained in a motor vehicle accident. He alleges that he sustained neck and back injury when the vehicle he was driving, which was stopped for a red light, was struck in the rear by a vehicle driven by a woman. More specifically, the man alleges in his bill of particulars that he suffered spinal injuries as a result of the subject accident. At a deposition conducted, he testified that he is employed as a Bronx laborer for a Brooklyn construction company, and that he missed 11 days of work due to his spine injuries.

The opponent woman moves for summary judgment dismissing the complaint on the ground that the man is precluded by Insurance Law from recovering for non-economic loss, as he did not sustain a serious injury within the meaning of Insurance Law. The woman’s submissions in support of the motion include copies of the pleadings; a transcript of the man’s deposition testimony; medical reports prepared by the complainant man’s treating chiropractor, and his treating neurologist; and magnetic resonance imaging (MRI) reports regarding the man’s cervical and lumbar regions prepared in February 2005. Also submitted by the woman in support of the motion is a sworn medical report prepared by the orthopedic surgeon. At the woman’s request, the orthopedic surgeon conducted an examination of the man on June 28, 2006, and reviewed various medical records related to the man’s alleged spinal injuries.

The orthopedic surgeon’s report states that the man presented with complaints of chronic neck and back pain, as well as an occasional limp. The report states, in relevant part, that the man exhibited full range of motion in his cervical and lumbar regions, with no palpable muscle spasm or tightness, during the physical examination. It states that the man stood erect, with no evidence of asymmetry, and that he moved easily during the examination. The report also states that the man demonstrated full range of motion in his upper and lower extremities; that there was no evidence of muscle atrophy or compression neuropathy; and that there was no evidence of any motor or neurological dysfunction. The orthopedic surgeon opines that the man suffered cervical and spine injuries as a result of the accident, and that both conditions have resolved. He further concludes that there was no evidence that the man suffers from any ongoing orthopedic dysfunction or disability.

Published on: November 24, 2012

Notice was finally given to the subcontractor’s excess insurer

by Stephen Bilkis

The Hudson Bridge in New York was being repaired. The Bridge and Tunnel Authority, the owner of the Hudson Bridge hired a general contractor to do the repairs. The general contractor hired a subcontractor. Under the subcontract, the subcontractor was supposed to obtain insurance in behalf of the bridge owner and the general contractor. The insurance policy of the subcontractor was supposed to cover all expenses for personal injury suits that may arise from the time that the subcontractor was doing repair work under the subcontract.

On August 11, 2003, a male employee of the subcontractor slipped and fell on a makeshift inclined ramp that led from the worksite to the temporary office also at the construction site. The employee of the subcontractor sustained serious spinal injury. His slip and fall resulted in herniated discs of his cervical and lumbar spine and an impinged nerve on the spine. The employee was confined to his home for one month after the accident. He was ordered to rest in bed for five months from September 2004 until February 2004. The employee needed spinal fusion surgery to fully recover from his injuries.

He filed a damage suit under common law negligence and under labor law. He sued the owner of the Hudson Bridge and the general contractor. The man did not include in his damage suit his own employer, the subcontractor. The man claimed for lost earnings and for future loss of earnings due to the spinal injury he sustained. No notice was given by any of the parties to the insurer of the subcontractor until two years had passed from the time that the suit was filed by the employee of the subcontractor.

Published on: October 21, 2012

Spinal injuries can cause problems that increase over the years

by Stephen Bilkis

Spinal injuries can cause problems that increase over the years from the date of injury. An injury that may not seem too severe at the time of injury can actually become much worse as the years go by. An injured spine is more likely to show signs of degenerative disc disease than one that has not been damaged. When a spinal injury occurs at work, it is especially important to document that injury and have it treated immediately to reduce the effects that the personal injury of the spine will have on ones later years. If a person delays too long in filing an application to receive disability benefits on the basis of a spinal injury, they may be denied. The reason for the inability to file a late claim on a spinal injury can be related to the inability to show a direct correlation to the original injury.

When a spine is injured, arthritis and other degeneration of the bone and cartilage of the spine may concentrate in the area of a prior injury. However, it is not possible to determine if the additional degeneration of the spine is associated with normal aging, or has been made worse by the previous injury. One case of this nature was when a Nassau County Police Officer filed a petition on May 5, 1972 with the New York State Policemen’s and Firemen’s Retirement System.

He claimed that six years previous to the application, he had been injured while attempting to carry an injured man on a stretcher from an apartment building. He claimed that his back struck an elevator door where he was compressed between the door and the stretcher. He stated that he sustained an injury to his spine that included a possible injury to the discs. Six years later, he filed his request for total disability associated with the injury from the accident. He claimed that the result of the accident was that he was not able to perform the duties related to being a patrolman on the police force.

Published on: October 18, 2012

On August 1, 2005, a manual laborer was working on a construction site

by Stephen Bilkis

On August 1, 2005, a Manhattan manual laborer was working on a construction site that was being operated on a military base. The objective of the construction was to renovate some military housing buildings that were run down. In order to renovate the buildings, the construction crew had to first remove all of the kitchen and bathroom appliances that were inside each of the units in the multi-unit buildings. The construction crew had a dumpster located outside of the buildings on the street that was available for them to put the debris from the renovation into. The Long Island construction team had been working in one of the buildings for several days and the manual laborer was tasked with the job of transporting the debris from inside the building out to the dumpster on the curb.

On that morning, the crew had filled one of the dumpsters and needed an additional empty one moved from farther down the street up to where the work was being done. The site supervisor instructed the laborer to get the dumpster and move it up. The dumpster was about to be moved when another construction contractor pulled a truck up in front of it. The site supervisor instructed the manual laborer to tell the driver of the truck to move the truck so that they could get to the dumpster. The laborer followed the instructions that he was given and then stepped backward away from the truck so that he could signal to the truck driver where to park. As he walked backward, he stepped on the top of a manhole cover. The cover was not properly in place and tilted up causing the man to fall into the manhole. He sustained several severe injuries as a result of this workplace accident. He contends that he suffered from severe spinal injuryas well as leg impairment.

He had to have several surgical procedures on his spine over the following year including bone grafts and fusions of his spine. He filed a personal injury lawsuit against both companies and the property owner because he contends that they were negligent in allowing the manhole cover to not be securely in place. In this case, there was no argument that the man sustained serious injury as defined by the Insurance Laws of New York. The problem for the court in this case was determining who was responsible for the spinal injury that the man had suffered that left him disabled and unable to work.

Published on: March 8, 2012

One of Five Explosion Cases Reaches Settlement with BP

by Stephen Bilkis

Europe’s second-largest oil company, BP Plc., settled one of the five cases set to go to trial last September on the day the trial was to start. The case concerns an explosion that occurred at its Texas Refinery in 2005.

The two sons of a 26-year-old man who killed himself about six weeks after the explosion, settled with the corporation the night before trial was to start. The settlement was for an undisclosed amount, both sides said. That leaves four claims for the first trial.

The March 2005 blast killed 15 and injured hundreds with spinal injury.

Published on: October 4, 2011

Company Fined after serious injury from scissor lift fall

by Stephen Bilkis

An electrical company based in Hertfordshire has been fined £120,000 after a man was knocked from a scissor lift and left paralyzed.

The attending HSE’s (Health and Safety Executive) Inspector said “The fine reflects the seriousness of the omissions by this company. Skanska Rashleigh Weatherfoil Ltd employed people to do highly hazardous work and yet failed to take the appropriate steps to ensure their safety.” The HSE (Health and Safety Executive) prosecuted Skanska Rashleigh Weatherfoil Ltd after the incident which happened on the 25 January 2007 at the Manor Royal Industrial Park in Crawley. Companies in the Bronx and Brooklyn are watching this case.

Lewes Crown Court was told that the company had been subcontracted to design and build the mechanical and electrical systems in a number of new buildings. A cable installer from Hartlepool was working in a scissor lift with two colleagues tying cables into overhead trays when they collapsed, knocking the man out of the lift and causing him to fall 8m to the floor below. According to a New York Spinal Injury Lawyer, the contractor suffered severe spinal injuries and is now paralyzed from the waist down.

Published on: August 7, 2011

There are around 12,000 new cases of spinal cord injury every year in the United States,

by Stephen Bilkis

There are around 12,000 new cases of spinal cord injury every year in the United States. There are about 300,000 patients who are still living with the neurological aftereffects of spinal injury.

Post-injury treatments for such injuries generally focus upon the treatment of complications like pain and urinary tract infections. There are promising new approaches, however, that focus upon regeneration and cell therapy. Early clinical reports using various types of cells have shown some improvement in spinal injury victims. Many of these injuries are caused by construction accidents in New York City and Queens.

New York Spinal Injury Lawyers have been looking into the implications of these procedures, studying selected preclinical and clinical interventions. There have already been attempts at a combination approach, using a number of different cells, as well as a case study which showed promising results. These types of therapy may very well be the wave of the future.