Central New York Injury Lawyer Blog

News reports say a man working on a cell phone tower near Marcy, New York, suffered serious injuries today after falling more than 80 feet. He is reported to have suffered multiple broken bones and was taken to Utica's St. Elizabeth's Medical Center.

Falls from a height like that can cripple, maim or kill. We had a similar case (fall from a cell tower) a few years ago, which we brought to a successful conclusion. To win it, we used a special law that helps workers who fall from rooftops, scaffolds and towers. It's called Labor Law 240, or "the scaffold law". It allows a fallen worker, under certain circumstances, to sue anyone with an ownership interest in the tower or the land the tower is on, including leaseholders, for compensation above and beyond what the worker will get in workers' compensation from his employer.

The key to winning this kind of case is to show that the worker was on the tower to "repair" something or to inspect something that was broken or malfunctioning. If his task involved "repair" work, or inspection work in contemplation of repair work, he is generally protected by Labor Law 240. But if he was performing mere "routine maintenance" of the tower, then he cannot prevail under Labor Law 240. He will generally be stuck with just his workers' compensation benefits, which (as anyone who has been on comp knows) generally isn't enough to pay the bills. It covers at most only about 2/3 of lost wages.

Under New York Labor Law 240, anyone with an ownership interest in the tower or land the tower was on can be held strictly liable for the workers' injury, even if the fall was largely the workers' own fault. The statute is designed to give the maximum amount of protection to construction workers and others who must risk their lives by working from heights.

Here are some of my other blog posts about Labor Law 240:

Save New York's Scaffold Law!

Tully High School Roof Repairman Who Fell From Roof Most Likely Has Solid Labor Law Case Against School District

Syracuse New York Construction Accident Lawyer Looks Up And Sees Labor Laws Being Broken!

Can I Be Sued If Someone I Hire To Remove Snow And Ice From My Roof Or Fix My Leaky Roof Falls? Central And Syracuse NY Personal Injury Lawyer Explains.

Can Spiderman Bring A New York Personal Injury Lawsuit For His Injuries?

Syracuse Fall-Off-Scaffold With Back Injury Case Settles For $1,000,000.

Keep safe!

Mike Bersani

Email me at: bersani@michaels-smolak.com I'd love to hear from you!

Michael G. Bersani, Esq.
michaels-smolak.com
Fallen Worker Injury Lawyer
Michaels & Smolak, P.C.

1-315-253-3293 Toll Free 1-866-698-8169

I get calls from people all the time like this one: "I was injured at work, and I am getting comp, but it's not enough to pay the bills. Can I sue for more"?

But I need more info. So I start asking questions back. As I listen to how the accident happened, I am trying to see if anyone other than the employer or co-employees was partially at fault. Was some third-party, such as an outside contractor, partially responsible? If not, at least a little bit, then we can't sue anyone. That's because the employer and co-workers can't be sued, even though they were at fault, as long as the injured employee got comp. This is known in colloquial legalese as "the workers' comp bar".

Just to make sure we can't sue anyone, after I have all the facts, I usually ask the caller, "can you think of anyone who was at fault for this accident other than your employer or your co-workers"? If the answer is "no", then chances are the guy is stuck with just his comp, which sucks, because that pays, at most, 2/3 of his pay. If you are a member of the working class, and you are just barely getting by on full pay, imagine trying to pay those same bills on 2/3 pay. A lawsuit, on the other hand, could result in full payment of lost wages, plus pain and suffering compensation.

Sometimes an employee works for one company, but is sent to another company to work. For example, a temp employment agency might send a worker to an outside company for a day's work. If the worker gets hurt because of that company's, or it's employee's negligence, can he sue?

As usual, the answer is "depends". New York has a "special employment" a/k/a "borrowed servant" doctrine, which basically says that if you are employed by Company A, which lends you to Company B, and you are injured because of Company B's negligence, you can't sue Company B as long as Company A provided you with workers' compensation. Although the courts consider several factors in determining whether to apply this "special employment" doctrine, the main one is "control". If Company B "controlled" your work, i.e., supervised you, told you what to do and how to do it, then generally you are considered a "borrowed servant" and the "special employment" doctrine bars you from suing Company B, just as it would bar you from suing your true employer, Company A.

The only way to know for sure whether your lawsuit is barred by workers' compensation, or there is a way around the workers' comp bar, is to talk to a qualified New York personal injury lawyer. So call me!

Keep safe!

Mike Bersani

Email me at: bersani@michaels-smolak.com I'd love to hear from you!

Michael G. Bersani, Esq.
michaels-smolak.com
Central NY Personal Injury Lawyer
Michaels & Smolak, P.C.

1-315-253-3293 Toll Free 1-866-698-8169

This story just kills me. The Syracuse Post Standard reports that a construction worker repairing the roof of Tully High School fell from the roof this morning while members of the high school's girls cross-country team stood by and witnessed it. I feel terrible for the injured worker, but also for those poor kids who witnessed the tragedy.

And it was an avoidable tragedy. The law was not followed. I'll tell you more about that later, but first let me say that, in my experience as a Syracuse construction work accident lawyer, most fallen roofer injuries are serious, and life-long. Because the injuries from falls are so serious, New York has a special law to protect construction workers on rooftops and scaffolds. It's called Labor Law 240, or "the scaffold law".

Tully School District will almost certainly be held liable to the fallen roof-repair man. Why? Because under New York Labor Law 240, the owner of a building is, in almost all circumstances, strictly liable for all worker falls from the building's roof. The roof repair man should have been tied up with a lanyard or some other safety device, and apparently he was not. This is, generally, a clear cut violation of Labor Law 240.

The fallen worker will be entitled to workers' compensation through his employer, but also entitled to full compensation from the School District for all additional lost wages, past and future, as well as any additional medical expenses, and pain and suffering compensation. Tully School District, call your insurance carrier! Tully School District insurance carrier, call your lawyers! Fallen worker or his family, call a New York construction accident lawyer!

Other related blog posts:

Syracuse New York Construction Accident Lawyer Looks Up And Sees Labor Laws Being Broken!

Can I Be Sued If Someone I Hire To Remove Snow And Ice From My Roof Or Fix My Leaky Roof Falls? Central And Syracuse NY Personal Injury Lawyer Explains.

"Worker in Geneva New York Who Fell from Scaffold Probably Has a Slam Dunk Case against Wal-Mart", Geneva New York Injured Worker Lawyer Says.

Central New York Construction Accident Lawyer: Construction Workers Injured in Binghamton New York Scaffolding Collapse Have Solid Case

OSHA'S Increased Construction Site Safety Enforcement in Syracuse and Central New York May Help Decrease Syracuse New York Falling Construction Worker Lawsuits.

Keep safe!

You can email me at bersani@michaels-smolak.com

Mike Bersani

Michael G. Bersani, Esq.
michaels-smolak.com
Central NY construction accident lawyer
Michaels & Smolak, P.C.

1-315-253-3293 Toll Free 1-866-698-8169

A web article I stumbled upon jumped off my computer screen at me today. It was titled "Plaintiffs lawyers eyeing Marcellus Shale Work." My first thought: "Gee, I am a New York personal injury lawyer located right in the Marcellus Shale zone, so how come I am not 'eyeing' the future Marcellus Shall Work". Next thought: "Hey, that hydrofracking work will be dangerous, workers will get hurt, they will need New York personal injury lawyers to represent them, so gosh, maybe I should be 'eyeing' the Marcellus shale work". Next thought: "Don't want people getting hurt, and besides, it's going to be messy for our environment up here, so thanks but no thanks".

All those thoughts streamed through my brain in about 3 seconds, before I even got to the first word of the article. Then I read it. A personal injury lawyer out of Pennsylvania somewhere was quoted as saying that the Marcellus Shale drilling would cause "horrendous injuries" because of all the gas and liquid under high pressure carried through pipelines, stored in big tanks, and ejected underground at high pressure. Drill rigs are notoriously dangerous. Toxic gas leaks burn workers and gas rigs explode. Big tanker trucks cause motor vehicle accidents on narrow local roadways.

OMG! Parade of horribles. Well, he convinced me: the Shale gas drilling, or "hydrofracking" as it's called, if it ever happens up here, will be good for the personal injury law business. Unfortunately, it probably will, if it goes forward, produce a fair number of serious injuries and deaths. And I am sure that many of the injured and the families of the dead will find their way to our law office since we are well regarded in the personal injury field and, I believe, the only law firm located in our area of the Finger Lakes that limits its practices almost exclusively to New York personal injury cases.

Still, I can't get myself to start "eyeing" future shale drilling, as if it were some kind of delicious dessert. We have enough injuries and wrongful deaths up here already to keep us busy and make a living. And we love the beauty of the area. Hydrofracking will foul our water, and mess up our pristine land and lake-scape. Some things just aren't worth the money . . .

Keep safe!

Mike Bersani

Email me at: bersani@michaels-smolak.com I'd love to hear from you!

Michael G. Bersani, Esq.
michaels-smolak.com
Central NY Personal Injury Lawyer
Michaels & Smolak, P.C.

1-315-253-3293 Toll Free 1-866-698-8169

Further news reports indicate that the injured and killed worker were not employed by DuPont, as I had indicated in my earlier blog post, but rather by another company, an outside contractor. This means that a New York workplace explosion lawsuit against DuPont for failure to provide a safe workplace will not be barred by workers' compensation law.

The welding equipment was apparently attached to an outside storage tank that had been taken out of service. The tank previously housed a chemical known as polyvinyl fluoride, or PVF, which is used as.a coating for solar panels.

Since the cause of the explosion is still unknown, a New York explosion lawyer would have to hire an explosion expert to investigate. From my experience handling explosion cases, I can say that this explosion must have been caused by some negligence on the part of DuPont of the supplier of the chemical or tank. Explosions like this just don't happen. Carelessness and mistakes make them happen.

Mike Bersani

Email me at: bersani@michaels-smolak.com I'd love to hear from you!

Michael G. Bersani, Esq.
michaels-smolak.com
Central NY Personal Injury Lawyer
Michaels & Smolak, P.C.

1-315-253-3293 Toll Free 1-866-698-8169

I read a news report today about a chemical tank exploding at the DuPont plant in Tonawanda, New York. The Tonawanda plant produces countertops and sinks and laminate film used in solar panels.

The explosion killed one worker and injured another. Police say the blast may have been caused by fumes or residue from chemicals the tank once held that were ignited by welding activities nearby.

Sounds to me like DuPont did not properly empty or isolate the tank. Unfortunately for the injured worker and the deceased worker's family, the case against DuPont will be barred by workers' compensation law. That means that they will get only workers' compensation benefits, which are minimal when compared to what they could get if a full-fledged lawsuit were allowed. Workers' compensation generally pays medical bills and about 60% of the lost wages. No pain and suffering compensation is allowed.

We had a similar explosion case a few years ago. In that case, an explosion happened at the Carrier plant in Syracuse. Several workers were very seriously injured. We could not sue Carrier (because of the workers' compensation bar), but we sued the manufacturers and suppliers of the equipment that exploded. And we settled for a multi-million dollar figure.

Perhaps there is a New York workplace explosion case here against the manufacturer or supplier of the tank or chemical that had been in the tank. Perhaps they failed to properly warn about the dangers of their product igniting and exploding. Perhaps there were defective valves on the tank that caused a leek. All these possibilities, and many more, should be investigated by a competent New York explosion injury lawyer.

As a Syracuse New York personal injury lawyer, I have received countless calls from Syracuse and Central New York workers injured at work who want to know, "do I have a case"?

When a worker calls and says they were injured on the job, here are, pretty much in order, the questions I ask them so I can figure out if they have a valid New York personal injury case: (1) Did you get, or are you getting, Workers' Compensation benefits? If the answer is yes, my next question is, (2) Were you injured because of something that a co-employee or your employer did wrong or is someone else to blame? If the at-fault person was a co-employee or the employer, the conversation usually doesn't go on much longer because the caller generally has no case. But if the caller says the accident was caused by someone other than the employer or a co-worker --- hey, now we have something to talk about.

Why does it matter whose fault it was? Because you can't bring a New York personal injury case against your employer, or co-worker, if your employer provided you with Workers' Compensation. Your case is barred by the New York Workers' Compensation Law. But, if you were injured on the job because of someone else's wrongdoing or negligence, you can bring a New York personal injury lawsuit against that person or company.

Who are the non-employer, non-co-workers who might be responsible for your injury? Usually they are: (1) other companies and their employees who were working on your job site or who installed or erected something at your workplace; (2) other companies or their employees if you were on their premises; (4) the manufacturer or distributor of whatever machine or other product injured you on the job site; (5) the owner of the premises where you were injured (if this is not your employer) or (6) in construction work, any other subcontractor or contractor who is not your employer, or the owner of the construction site.

If you were injured on the job by the negligence of someone other than your employer or co-workers, you are still entitled to workers' compensation benefits (from your employer's workers' compensation carrier) but you can, in addition, bring a New York personal injury claim against the at-fault non-employer, non-co-worker.

So do you get double benefits? No! The Workers' Compensation insurance carrier has a "lien" against any settlement or judgment you obtained in the personal injury claim. In other words, you have to pay Comp back out of your personal injury case for whatever medical bills and lost wages Comp has paid you.

Despite this legally required pay-back to Comp, you are still usually much better off if you can bring a personal injury action. Why? Because you can't claim pain and suffering in your Comp claim, and you get only 60% of your lost wages. But in your New York personal injury claim you are allowed to claim pain and suffering compensation and 100% of your lost wages.

If you are injured on the job, feel free to call me so we can figure out whether you are stuck with just Comp, or whether you have the right to bring a New York personal injury action as well. I am more than happy to talk to you, even if it turns out you don't have a case.

Keep safe!

Mike Bersani

Email me at: bersani@michaels-smolak.com I'd love to hear from you!

Michael G. Bersani, Esq.
michaels-smolak.com
Central NY Personal Injury Lawyer
Michaels & Smolak, P.C.

1-315-253-3293 Toll Free 1-866-698-8169

My last blog was about ADR (Alternative Dispute Resolution), such as mediation and arbitration, which is, to a certain extent, replacing jury trials as a way to resolve personal injury lawsuits in Syracuse, Central New York, and, in fact, just about everywhere else. Here's a recent example of how ADR works from my own case load.

I am scheduled to try a Syracuse fall-from-scaffold lawsuit in about 3 weeks. Meanwhile, the defendant's insurance carrier has invited me to try to settle the case through "mediation" first. After I explained how this works, my client agreed to it, and we will be at the mediation table in about a week. If we don't settle at the mediation, I will have only a few weeks to prepare my trial, which is not enough time. I really need 6 weeks! So I am already preparing my exhibits, my direct examinations, my cross-examinations, etc., in case I need to try this Syracuse construction accident lawsuit.

The case may or may not settle at mediation. Much of that depends on how reasonable the insurance carrier will be. If the case settles in mediation, I won't feel bad about having spent so much time preparing for trial. I always learn by preparing for trial. It makes me a better lawyer.

In preparing to try this case, I have become a kind of "expert" on lumbar (lower back) injuries, which is what my client suffered when he fell from a scaffold at work and landed on his feet. I have even ordered large "blowups" of my client's x-rays and MRI's so his doctors can vividly explain his injuries to the jury. I have also hired a medical illustrator to create illustrations of the surgery my client endured as a result of his accident.

Even if I don't try this case, the medical knowledge I gained in preparing for trial will help me in other cases, since lumbar spine injuries are very common injuries in falls from scaffolds cases, car accident cases, and other types of traumatic injury cases.

My father always said, "there is no such thing as useless knowledge". As usual, he was right.

Let's say a guy with a completely limp arm walks into my office. The arm just hangs there, lifeless. The guy will never be able to use that arm again. What happened? Let's say his sleeve got caught in a machine, which drew in his arm, and that his arm was stuck in the machine for many hours while emergency response teams tried to extricate him. My client appears blameless. He was just doing his job the way he always did it, and the way his employer instructed him to do it. Why did the machine suck his arm in? Was it defectively designed? Was it improperly maintained? Why wasn't there a kill switch he could reach? Were the warnings and instructions on it sufficiently clear? Was my client simply not trained right on how to use it?

These facts are similar to several cases I have handled, including one I just recently took in. And I can't answer those questions I just posed, at least not yet. New York workplace injury lawyers like me need to rely on engineers to help us answer these questions. The main question, though, is whether the machine was "defective". By "defective" I mean "unreasonably dangerous", which is the standard for proving a New York product liability lawsuit. My client has a case only if the machine is "defective", and the engineer's main job is to determine whether it is defective.

I have already consulted with such an engineer. We are going to carefully examine the machine together. My expert engineer will then be able to tell me whether, in his opinion, the machine was defective. He will research the relevant standards for designing and building such machines during the time period when this machine was built, and also will research the standard warnings and instructions that should be placed on this kind of machine.

Since my client is poor and can't afford to pay the engineer, I have agreed to "front" the money for it. And it's expensive! But it's also the only way to find out if the client has a case. I sure hope he does have a case, because his workers' compensation payments (60% of his regular wages) don't pay all his bills, and he's got kids to feed.

If there is a defective machine case, it will be against the designer and builder of the machine. He can't sue his employer because workers' compensation law bars him from doing that.

I feel really bad for this client. He is a nice guy, with a bad injury, and has a tough economic situation. One of my worst jobs is to tell a seriously injured and blameless client "you have no case". I am hoping I don't have to tell him that.

Workplace injuries are, unfortunately, all too common. Work site fatalities are less common, but even one is one too many!. And when death-at-the-workplace happens to YOUR father, husband, wife or mother, it changes your life forever. That's why our hearts go out to the family of the Herkimer County man who was killed today in Lincoln, New York at the Madison County landfill. The box of his dump truck had become stuck while he was dumping trash into the landfill. He was trying to dislodge the box when it fell off the truck and crushed him. Co-workers had to use a backhoe to lift the box off him.

As a Syracuse New York work place accident lawyer, I can't read a story like this without wondering whose fault it was. Who is responsible? Usually accidents don't just "happen". Rather,my experience with work site accidents teaches me that almost always someone failed to follow safety rules.

This unfortunate worker was employed by Feher, a waste disposal company that operates in Syracuse, Utica, Watertown and Geneva. Feher has a less-than-perfect safety record. In 2007 a Feher truck ran over a Feher employee while he was collecting trash in Pompey. In 2009, a pedestrian was trapped under the wheel of a Feher truck.

I'm not saying Feher was at fault --- just that it has some suspicious blemishes in its safety record. When a company has a troublesome safety record, it usually means they are cutting corners and skirting safety rules. In this case, the truck box might have been improperly maintained, inspected, constructed or installed.

This diseased worker's family has an absolute right to worker's compensation benefits, of course. But the compensation will be minimal when weighed against the loss. And even if the employer was negligent in the maintenance of the truck, and this caused his death, the worker's family will be barred from suing the employer by Workers' Compensation Law. Nothing bars them, however, from bringing a claim against other parties who might be responsible for this accident. Perhaps an outside company was responsible for maintenance of Feher's trucks, in which case this deceased worker's family might have a worksite accident case against them.

OSHA will certainly be investigating this incident and may write "citations" that point an accusatory finger toward a culpable party. A competent workplace accident lawyer would know how to supplement OSHA's investigation to unearth other evidence of fault.