Employee or Independent Contractor?

by Vikas Bajaj

Construction accidents are among the most frequent and catastrophic of any workplace injury. The sheer weight of the equipment, the expertise that goes into running a construction site safely, and the quantity of things that can go wrong all contribute to making construction zones very dangerous.

Typically, when an employee is injured at a place of employment or while acting in the scope of employment, the employee is entitled to workers’ compensation insurance coverage. Workers’ compensation is a type of insurance that most employers are required to carry for the benefit of their employees in the event of a work-related accident or injury. However, not all employers carry the insurance they are required to, nor are all workers entitled to this type of insurance. If you or someone you know has been injured on a construction site, contact an experienced construction accident litigation attorney today to learn more about your legal options.

What Is Workers’ Compensation?

Workers’ compensation is an insurance policy paid for by employers to safeguard against financial losses due to an employee injury. Historically, injured workers could simply sue their employers directly. The California Division of Workers’ Compensation has changed this, however, and made it such that the majority of legal action is streamlined though the workers’ compensation program. Absent extreme cases of negligence, intentional conduct, or other specific circumstances, employees cannot sue their employers for injuries and must instead make a claim through their employer’s workers’ compensation insurance.

All companies in California are required to carry workers’ compensation insurance by law, even if they have only one employee. Unfortunately, some companies operate “under the radar,” so to speak, and may not carry the required coverage. Assuming an employer has the requisite workers’ compensation insurance coverage and an employee is injured on the job, the workers’ compensation coverage may include:

• Coverage for the cost of medical treatment incurred due to the accident or injury;
• Temporary or permanent disability benefits, depending on whether the employee will be able to return to work;
• Supplemental job displacement benefits which may help the employee retrain for another vocation if unable to return to their employer; or
• Death benefits, to be paid to surviving family members in the event of an on-the-job death

These benefits are designed to allow workers an opportunity to receive medical treatment, recover, and hopefully return to work without suffering severe financial losses. Often, an injured worker may be the breadwinner of the family; workers’ compensation coverage protects the worker’s rights and ensures that he or she will be compensated for any injury during the recovery period.

Why are Construction Accidents Different?

In a general sense, getting hurt on a construction site is no different than getting injured at an office job. The difference exists primarily in two areas: one, construction jobs are inherently dangerous and there may be a higher standard in demonstrating that you did not significantly contribute to your injury through your own negligence; and two, construction jobs frequently hire “independent contractors” who are generally not considered employees for the purposes of workers’ compensation coverage.

What if I Have Contributed to My Injury?

If the Division of Workers’ Compensation believes you may have contributed to your accident significantly, you may initially be denied the coverage you are entitled to. Typically, it is not an absolute defense that the employee may have contributed to his or her injury, though this standard may be different in death cases. If negligence is purported, it is the employer’s burden to prove that they were not negligent in contributing to your injury. The most common construction accidents involve falls, electrocutions, and falling objects that cause crush injuries, but accidents can happen at any time and to anyone on the job.

But I Work Here: How Could I Not Be an Employee?

Construction jobs create unique employment scenarios because often, the workers are hired as “independent contractors.” The difference between an independent contractor and an employee is legally significant, and essentially is determined by the amount of control, if any, the employer has over the worker, the autonomy of the worker, the way costs are controlled (i.e. if the worker pays and is reimbursed, or is supplies are purchased by the employer), the hours and nature of the job, whether the employer regulates/takes taxes, and how the party’s relationship is conveyed to others. Independent contractors are extremely common in the construction injury due to the nature of the work involved and create problems when injuries occur.

Occasionally, a developer may hire a company that outsources to independent contractors. Some independent contractors may even outsource to other independent contractors. This makes pin-pointing liability for injuries difficult. When possible, it is always best to work as an employee to ensure that you are protected by state and federal government regulations, which include the benefit of receiving workers’ compensation insurance.

What if My Employer Does Not Carry the Requisite Insurance to Pay Me Benefits?

You may still be entitled to receive benefits through different means. An employer that is not in compliance with state regulations requiring workers’ compensation insurance may be held criminally liable for their failure to carry insurance. Some companies may opt to be “self-insured,” which is privatized insurance which typically has a similar effect to workers’ compensation insurance. Regardless, if your employer does not have the requisite insurance, they may be required to pay out-of-pocket for your medical bills related to your work injury. If your employer is uninsured, it is possible that you may qualify to receive compensation from the Uninsured Employers’ Benefit Trust Fund, which will ensure that an injured employee’s medical bills are paid by taking legal action against the employer.

What If I am a Non-Employee, Non-Independent Contractor Injured on a Construction Site?

While it is much more common for construction site workers to be seriously injured or killed on construction sites, injuries can happen to passers-by. A tragedy struck recently when a pregnant woman was killed by an overturning gravel truck in Martinez, California, and while rare, these instances do happen. While a third party injured or killed on a construction site would not be eligible for workers’ compensation coverage, their estate (if deceased) may be entitled to file a premises liability, negligence, or personal injury action to recover monetary compensation for their loss.

Filing a Workers’ Compensation Claim in California

The most effective way to file a workers’ compensation claim is by hiring an experienced personal injury attorney to help you navigate the paperwork to ensure that your claim is processed timely, accurately, and thoroughly. If you are injured on the job, the very first thing you must do is notify your employer, preferably in writing, right away. While you may initially seek treatment from the physician of your choice, especially in emergency circumstances, your employer’s workers’ compensation insurance carrier may require you see one of their doctors at least for an evaluation.

Your claim will indicate the date, time, and circumstances surrounding the accident. It is best to speak with a lawyer before making any statements that may harm you in your claim. For example, do not ever admit fault or state that you contributed to your accident in any way– insurance carriers are always trying to pin-point liability on the injured party to avoid having to pay out. There is a specific form that must be used and claims must be filed within a certain amount of time from the accident or injury or your claim for benefits may be barred. There are exceptions for this when the injury alleged occurred over time, such as if the injury is caused by prolonged exposure to chemicals or other toxins, but otherwise, claims must be timely filed to be considered.

If your initial application for benefits is denied, or if the commission determines you are entitled to less benefits than you think you deserve, you may file a timely appeal. Again, utilizing a lawyer at this stage is critical, as it provides you a better chance of getting your claim approved. You must request a hearing and fill out the requisite paperwork in order to appeal your claim, request a hearing in front of a judge, and receive a date and time for said hearing.

Get a Free Consultation From Our Personal Injury Lawyers Today

Workers’ compensation claims are on the rise in California; with mounting pressure from employees to their employers to carry the requisite amount of insurance, as well as the steep penalties associated with non-compliance, most employers are in compliance with workers’ compensation insurance requirements. However, many employers still operate “under the radar,” so to speak, or choose to employ independent contractors that may not be entitled to benefits in the event of an accident or injury on the job. Construction accidents present a unique situation in determining whether a worker constitutes an employee or an independent contractor for purposes of employee benefits in the event of a workplace accident or injury.

Injury Trial Lawyers APC is a San Diego-based group of experienced construction accident attorneys that can help you if you have been injured on the job. Regardless of whether you think you are categorized as an independent contractor or employee, we work hard to advocate for our clients to ensure they receive the compensation they deserve. Due to the time-sensitive nature of workers’ compensation claims, make sure you contact our office as soon as you suffer a workplace-related injury; we can help you navigate the rest. Call us today at (619) 525-7007.

Tags: construction site accidents, employment law, Personal Injury, workers compensation, workplace accidents