When workers are hurt in an industrial setting, they almost always have access to workers compensation. At the turn of the 19th century, most states adopted “work comp” schemes to provide injured employees and their families some form of safety net. Before that time, workers could sue if they were hurt on the job, but almost all claims were defeated by the “unholy trinity” of defenses, each of which was a complete bar to any recovery: the defenses were comparative fault, the assumption of risk and the fellow servant rule. Basically, one of the three applied to protect an at-fault employer in almost every situation.
As with most states, Michigan’s work comp scheme dropped the comparative fault, the assumption of risk and the fellow servant rule defenses. These three defenses in return for strict limitations on recovery against the employer. Employees were covered for any injury that occurred in an employment setting; however, the coverage was limited to the very basic necessities: usually medical coverage and two-thirds of net pay (less any Social Security Disability or other collateral sources). As a result, the family of an employee injured while at work will not starve, however, in many cases, they will be consigned to living just at the governmentally-defined poverty level. Even if the employer was guilty of “gross” negligence, the injured employee cannot supplement the work comp benefits with a lawsuit against the employer. The only exception to the employer’s work comp “immunity” is for injuries intentionally caused by the employer.
If an injured employee thinks he may have a claim, he should talk to a knowledgeable expert promptly. Free consultations are available to allow the victim to confirm that his benefits are complete and that they are calculated properly. Usually, the victim must give notice of the injury-causing incident within a certain time period, or the right to make a claim may be lost.
More Complete Recoveries:
There are times when the victim or his family may be entitled to a more complete recovery. For example, if the injury occurs in a motor vehicle, rather than in a factory, the victim is entitled to collect no-fault PIP benefits to complement his work comp benefits.
Furthermore, regardless of the site of the injury, if there is a third-party involved in causing it, the employee may have a claim against that person or entity. In an industrial setting, the third-party may be a consultant who designed the workplace, a manufacturer who designed a machine or its guards, or a service firm that removed guards, maintained equipment, or created a hazard. Sometimes the injury involves employees of another entity who work alongside the injury victim, such as delivery or transportation contractors, for example, or maintenance specialists, plumbers, electricians, or other outside contractors.
Frequently, injuries occur on a site where construction activities are on-going, and a contractor has either acted negligently or failed to protect workers in so-called “common areas” where multiple workers are exposed to danger.
In all of these cases, if the lack of due or reasonable care on the part of a third-party is one contributing factor in causing the injury, the victim or his family may be entitled to a more complete legal recovery. This would include, for example, collecting the entire wage loss, or collecting for pain and suffering or for the loss of the victim’s society and companionship, if the injury is fatal. In all of these cases, the work comp insurer would be entitled to repayment of its out-of-pocket expenses from the third-party, through the mechanism of a subrogation lien.
If the worker is injured at a job site that is not owned and controlled by the employer, the victim may have the right to sue the premises owner if the work site was “hazardous.” For example, a pipe-fitter sent to a factory to make repairs might have the right to sue the factory owner, if he was injured by an unsafe condition.
Today, a frequent source of employment-related injuries is chemical exposure. The law governing the use and distribution of chemicals and other toxic or dangerous materials is often complicated by issues involving the relative sophistication of the users and governmental or industry standards or regulations. A manufacturer may not be required to disseminate adequate warnings or instructions if it only makes bulk sales and then, only to experienced commercial users of its products.
In the past, Michigan courts have also treated “inherently dangerous activities” as a special category of liability. Beginning in cases involving explosives and blasting, the inherently dangerous or ”ultrahazardous” activity doctrines held the entity involved in these activities strictly responsible for all injuries that resulted. During the 1970s and 1980s, activities such as tower-climbing, electricity management, tree-cutting and other work at heights or with dangerous instrumentalities were all deemed potentially “inherently dangerous” [the ultimate decision was often left to the jurors]. In the 1990s, however, the Engler Majority of the Michigan Supreme Court responded to Chamber of Commerce and insurance industry pressure by severely limiting the situations where strict liability can be imposed.
Thompson O'Neil Law Firm located in Northern Michigan, Traverse City. Attorneys who specialize in personal injury, insurance disputes, employment rights, civil litigation and more.