Legal Question in Workers Comp in California

Were you the employee of the contractor who was responsible for your injury so that you can sue him at all? You will have to call various plaintiff's attorney wh9 handle construction injury cases to see who will take the case.

You have THREE CLAIMS to keep sorted:

(1) SERIOUS & WILLFUL MISCONDUCT OF EMPLOYER. It's probably too late. Your Workers Comp Atty should have filed and already personally served your employer for sending you to work in a place with OSHA violations. THIS HAS TO BE FILED AND SERVED ONE YEAR AFTER THE INJURY.

(2) WORKERS COMP BENEFITS. Sounds like this is all your attorney is doing. Too easy.

(3) PERSONAL INJURY AGAINST VIOLATORS OF THE OSHA regulations: YOU CANNOT SUE YOUR EMPLOYER in civil court for personal injury BUT -- as you've noted -- the contractor had somebody on site violating CAL OSHA regulations. VIOLATION OF A STATUTE is presumed negligence, so it's pretty easy to prove. NEGLIGENCE can be filed and served within 2 years of the loss... only problem is the contractor gets to subtract whatever recovery you get in the Workers Comp action. SO IF YOU GET 50,000 TO SETTLE THE WHOLE COMP CLAIM THEN YOU SETTLE FOR $100,000 IN THE PERSONAL INJURY ACTIONS: your personal injury attorney takes $33,000 or the $100,000, the contractor subtracts the $50,000 you already got, then you're left with only $17,000 in the civil action. I'D SWITCH TO A LAW FIRM WHO WOULD PURSUE ALL 3 CLAIMS.

Ms. Wallace attaches an unfair indictment to your current attorney. I have a similar case where I have explored all possibilities with my client. In fact, I discussed the potential 3rd party claim with one of the top, and most famous attorneys in California (who is one of my regular associates) who confirmed what I already knew, which was that the 3rd party case was not worth pursuing since the injury suffered could not justify the expense of litigation in a hard fought case.

The Cal OSHA rep can find the negligence, but he/she is not a lawyer. In addition, he/she might not be aware of existing verdicts with similar cases, nor might the rep be familiar with the expense of litigation.

Some of the figures Ms. Wallace provided you are inaccurate. If you settle your third party case for $100,000.00, the comp carrier can take a credit for your settlement. For example, if you settle your comp case for $50,000.00 (absent a showing of negligence from your employer, assuming for a moment that the contractor is not your employer), the credit your employer's comp carrier would take would NOT be for $50,000.00. Instead, it would be for all species of benefits that you received for medical, temporary disability, etc. This could be well over $100,000.00. This means that your employer's credit they can take against your third party recovery can easily wipe out your entire worker's comp recovery. And then your third party attorney takes 40%, or, 33%, depending, rather than the 15% your workers' comp attorney will take. Therefore, it is not always wise to file a third party lawsuit for the above reasons.

With regards to a Serious and Willful, at least in my current case, it's still on the table.

Give your attorney a chance to explain all the details. If you're not satisfied, then feel free to contact me at 1.877.505.INJURY, or visit my website at www.lupofflaw.com.