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What Happens After a Serious Construction Accident?

No one likes to think about what will happen if they are seriously hurt on the job, but in the back of our minds we all know that serious construction accidents do happen in New York. Considerable time and effort is put into accident prevention (which is a good thing that benefits everyone) but very little is done to inform workers what to expect if they do sustain a serious work related injury. This is what I learned over the past 35 years.

What happens after the 911 call

For the worker and his family there is just one thing that occupies their thoughts and actions: “Please God let him live”. Family and friends rush to the hospital and begin the long vigil.

It is very different for those who have an economic stake in how the accident happened: the employer, the liability and compensation insurance companies, general and sub- contractors, and the owners of the project. Their representatives are mobilized immediately. It starts with the next call after 911. Construction managers are instructed to immediately inform the chief safety officer or insurance representative so they can assume control from that point on. This was the time line in one such case: the employer filed its formal notice of accident with its insurance company 1 hour and 3 minutes after the worker was run over by a truck. 59 minutes later a claims adjuster was assigned the case. 23 minutes after that, the safety coordinator was on his way to the hospital to gather medical information. 2hr and 29 minutes later the safety officer reported to the claims adjuster that the worker was undergoing a 12 -13 hr operation. By days end, the insurance company was working out how much money this accident was going to cost them. Unfortunately the line in the sand is drawn as soon as the company begins its investigation.

Keep in mind that insurance companies are in business to earn profits for their shareholders. The less they pay out in claims the greater their profits are. Good insurance company employees always seek to increase the company profits. This frequently leads to a situation where the worker is treated as an adversary who is attempting to wrongfully collect benefits.

All insurance companies belong to an organization called the Insurance Services Organizations (ISO); a central database where every claim for insurance benefits that has ever been made, by anyone, no matter how it occurred or who was at fault. One claims adjuster proudly testified that the very first thing he did upon being assigned a new case involving a woman who was severely injured when a truck crossed over the center line and struck her head on, was to send for an ISO report. He stated that the information is used to determine if someone (in this case the injured woman), is the kind of person who is likely to abuse the system. In this insurance company, there was a corporate mentality that everyone is presumed to be filing a fraudulent claim until proven otherwise.

Once an injury occurs, the primary goal of these trained company representatives quickly goes from accident prevention to damage control. First the accident scene is secured and preserved for their accident investigators. Co-workers and all other witnesses are sequestered, interviewed and statements are recorded. Frequently, only the statements of witnesses favorable to the company’s position are recorded while those witnesses who are less favorable are minimized or even ignored in the official reports.

When OSHA shows up, the witnesses are not available to be interviewed by the government inspector. Many excuses are given for their absence from “they no longer work on this job” to “all our employee witnesses were sent for psychological counseling.” The OSHA investigator often gets access only to the employees who maintain allegiance to the company position.

Things are lost, like the worker’s hard hat or safety harness, critical evidence such as the ladder or scaffold that collapsed are misplaced during the post accident turmoil.
Co-employees are instructed not to speak to anyone about the accident, often with the subtle indication that their continued employment is at stake. Even the injured worker’s closest friends must now act cautiously out of fear for their jobs.

Once the facts are uncovered the company professionals put just the right kind of spin on their official version of what happened. In one recent case, where a laborer stationed on the ground was electrocuted when a crane operator maneuvered his crane too close to a high voltage line, the employer’s representative informed the police and hospital that the worker must have been struck by lightening from a passing storm. Once the statement was made it was repeated dozens of times in conversations with hospital personnel, police and OSHA all done with the design to support of a future legal defense. Another was to suggest that the accident happened because the worker positioned himself in the “kill zone” when in fact the worker’s foreman decided the location where the workers were to be stationed.

One way to help protect against this one sided investigation is to designate a trusted, level headed, friend or family member to act as the injured worker’s point person until professional help is retained. This frees up the family so they can attend to the well-being of the injured worker while the ongoing task of dealing with all the practical issues are attended to, such as supplying necessary information to police agencies, OSHA, and insurance companies, dealing with hospital and compensation forms, getting the necessary information to file for worker’s compensation benefits, speaking to witnesses who come to the hospital to visit the injured worker before the employer interferes with their willingness to speak about the accident, and most importantly preventing the spread of non essential information about the worker, his family, and other personal matters that have nothing to do with the accident or injuries. The point person can take other simple measures which may prove to be extremely helpful at a latter time such as requesting names of all potential witnesses to the accident from police and co-workers, asking for as much detailed information about what happened, taking some basic photos of the accident scene and tracking down all personal items of the injured worker such as his work gloves, hard hat, safety belt, and even the worker’s boots and clothing which may have been left on the job site or removed from the worker in the ambulance or emergency room.

The day after the accident

Insurance companies are also given access to confidential medical information that they are not entitled to. In one case, within 24 hours of sustaining a life threatening injury, the insurance company solicited the patients roommate to act as an inside informant supplying the company with information he overheard the doctors and nurses discussing about the patient’s injuries, care and treatment.

More often, a simple telephone call from an insurance representative to the hospital, with the introduction “I am with the insurance company that represents the injured worker and I need some information to process the medical bills” opens up a direct line of communication. The fact is some of these calls may not be from anyone who has a right to confidential medical information. To prevent this type of unauthorized communications, the hospital should be placed on notice not to speak about the patient’s care and treatment to anyone who does not present a proper written authorization from the patient.

The near term recovery period

Hospital care is expensive and therefore there is a great economic interest in discharging the patient from the hospital as soon as possible. As a patient you have the absolute right to participate in your discharge planning and must take advantage of this opportunity to prevent a premature discharge or be subject to an inadequate discharge plan. Ask questions and demand answers that you can understand about what the injuries are, what treatment is necessary and how the treatment is to be provided.

When a serious accident occurs doctors must decide what to treat first. The process of deciding the order of treatment is called triage. The patient’s most important needs are addressed first followed by care and treatment for the non life threatening injuries. When the injuries are identified medical specialist are then called in to treat the patient for each specific condition. This treatment by different medical specialist can often lead to injuries that are never documented or treated in the hospital. For example a worker who was injured in a scaffold collapse may have had severe neck and back injuries which require complete bed rest. A fracture of the foot went undiagnosed in the hospital because the patient was on complete bed rest and he was not allowed to walk until several weeks later. That is when the patient first realized there was something wrong with his foot. Another example is the patient who suffers a “closed head injury” which occurs when the brain strikes the inside of the skull causing injury as happens when a person suffers a concussion. This injury may lead to the patient’s inability to concentrate, slow speech patters, delays in the ability to respond verbally, inability to recall the names of simple basic objects, forgetfulness, difficulty reading and comprehending what has been read, or loss of short term memory. Because the patient is preoccupied with the more obvious injuries, the subtle effects of a closed head injury may not be noticed until several months after the accident. To insure proper documentation of these injuries and to be eligible for payment of medical care and treatment, the patient must be a self advocate. Contact your primary care physician and explain the symptoms you notice as soon as possible. The quicker the condition is treated the better off the patient is and the sooner the bills will be processed. Keep in mind that telling one of the specialists about a newly discovered injury may get you no where if the injury is not something that specialist treats. You need to speak with your primary care doctor, even if he has not treated you for any of the work related injuries. He will act as you general doctor and get you to the correct doctor for treatment even if it is a compensation related injury.

In the long term

Insurance companies who are facing long term compensation payouts to injured workers often consider themselves as being victimized by the worker and therefore justified in pursuing a course of action designed to get the worker off the compensation rolls no matter by what means. In one situation, where the worker had been determined to have sustained a total permanent disability from his work related accident, I discovered the claims supervisor for the insurance company had admonished her staff handling of the injured worker’s claim stating “I don’t think it is true that there is nothing you can do. If the claimant is non-compliant with treatment(smoking cessation, causing PT & MDs to refuse to treat him, etc.), you should be able to petition the Board to terminate benefits, I know that you will not get the Board to terminate, and this is not really the goal. However it may be a sufficient threat to convince the claimant that he must co-operate in the treatment of his injury. Please discuss this with counsel right away and let me know the outcome of that discussion.”

This is a good example of how a severely injured employee goes from the status of a protected worker to being portrayed as an opportunist who is milking the system.

Yet another situation revealed the following interchange between an insurance supervisor who learned that the injured worker went to the insurance compensation doctor for an exam but failed to bring his artificial leg along. She reported “I got the IME report back for [injured worker]. First note is that the little snip didn’t bring his prosthetic leg.” This was upsetting to the supervisor because she wanted the doctor to find that the worker had learned to use his leg and therefore he might be found to no longer be disabled. In response to this, the person directly handling the claim replied: “I just called [injured worker] at home. Woke him up (don’t I feel bad!) :I asked him why he didn’t bring his leg and he stated that it was because it wasn’t human and it wasn’t a part of him, I advised that I would have to set another exam because he didn’t bring it and he said that it didn’t indicate anywhere on the paper work to bring the prosthetic with him and he wasn’t a mind reader.”

Remember, when a worker is badly hurt on the job someone will always be stuck with cost of the medical care and treatment and help with the lost wages. It might be the worker’s compensation company, a liability insurance company, your private health insurance company, Medicaid, Medicare or the owner of the property. Someone will have to pay and the cost will be high. When large sums of money are at stake, “for profit” companies will do what they have to protect themselves. You need to do the same for your well being and that of your family.

Call us for a free initial consultation

If you were injured on a construction site, contact Powers & Santola, LLP., today to schedule a free initial consultation with our experienced Syracuse, Rochester, or Albany construction accident lawyers. Contact us online or call us toll-free at 518-465-5995. We are here to listen and to help.