Carpenters help build homes and businesses across North Carolina and Virginia. They set the foundation for the work stone masons, glaziers, and many other types of construction workers do. Unfortunately, carpentry work is dangerous. Many workplace accidents cause construction workers to lose time from work while they seek medical help. Carpenters can claim work injury benefits provided they are employees and the accident that caused their injuries occurred while they were working. Proof of intoxication or safety rule violations can also be common defenses utilized against workers in any industry, but the construction industry, in our experience, does seem to see a higher rate of a claim of intoxication than other industries.
What types of injuries do carpenters suffer?
Many carpentry accidents are caused by the various types of tools, machinery, and equipment carpenters use. Some of these many items include drills, jackhammers, mechanical saws, different types of saws, different types of chisels, and other tools. Forklifts are a common cause of construction accidents. Carpenters may suffer electrical current shock, cuts and bruises, puncture wounds, broken bones, and amputation of fingers and hands. Other common carpentry injuries include eye injuries, hearing loss, and repetitive stress injuries including carpal tunnel syndrome
Why do carpentry accidents happen in North Carolina and Virginia?
Common types of carpentry accidents include:
- Falls from high heights. Many carpenters work above the ground. Falls from scaffolds, ladders, and loaders can cause permanent injuries including brain trauma, spinal cord damage, amputation of a limb, broken bones, pilon fractures in the tibia and ankles, and soft-tissue injuries. Some falls may be deadly.
- Injuries due to defective equipment. Some machines fail to work when the carpentry needs them to work. Workers can file a workers’ compensation claim if defective tools cause a workplace injury.
- Violations of Occupational Safety and Health Administration regulations and violations of local building codes. Fortunately, it is not necessary for a carpenter to prove that an employer failed to comply with OSHA regulations, local building codes, or construction standards. Still, violations of these regulations can cause catastrophic injuries, permanent injuries, and injuries that cause a lifetime of pain. Employers should protect their workers and ensure they follow all appropriate regulations. In addition in North Carolina, N.C. G. S. 97-12 (3) says that if one can show that a clear, willful violation of an established safety statute contributed to his injuries, he may be entitled to a 10% increase in weekly comp benefits.
Safety Rule Violation Defenses
While it is important that Employers protect their workers, employers often utilize those same rules against their employees when a worker’s compensation claim is filed by an injured employee.
One of the most common violations that an employer will claim is a failure of the employee to wear appropriate fall protection when working at heights, such as on a roof or scaffolding. If the employer can prove a willful violation of this rule, or any other safety rule or regulation that was clearly made known and enforced by the employer prior to the accident, and this violation was a proximate cause of the employee’s accident, then the employee would not be entitled to recover in Virginia. In North Carolina, that recovery would not be completely barred, but only reduced by 10% under those circumstances, via N.C.G.S. 97-12 (3).
So, in Virginia, what do you do if you encounter such a defense in your workers comp case? Well, if you can prove that the employer routinely and knowingly allowed the supposed rule to be violated by your fellow employees, then that will defeat the defense.
Another common claim by the employer is that the employee was intoxicated at the time of the accident. This subject can take up an entire article in itself, but for now, the workers compensation intoxication defense in Virginia must be proven by a BAC report which is typically done at the hospital following the accident. If the report says that the employee had a BAC over the legal limit for driving in VA, which is contained in VA Code 18.2-266, and .08 per 210 liters of breath, then there is a rebuttable presumption that the employee was intoxicated due to the consumption of alcohol. The same is true if controlled substances are found in his or her system. That same statute now contains the following blood concentration limits for a presumption of intoxication, if found at a level equal to or greater than:
(a) 0.02 milligrams of cocaine per liter of blood,
(b) 0.1 milligrams of methamphetamine per liter of blood, (a.k.a.”Crystal Meth”)
(c) 0.01 milligrams of phencyclidine per liter of blood, (a.k.a.”angel dust”) or
(d) 0.1 milligrams of 3,4-methylenedioxymethamphetamine (a.k.a. “Ecstasy”) per liter of blood.
Such evidence can only be overcome by clear and convincing evidence.
In North Carolina, if proven, intoxication of the employee is also a complete bar to recovery but in the workers compensation context, but per N.C. G. S. 97-12, “intoxication” means the employee shall have consumed enough of the intoxicating beverage or controlled substance “to cause the employee to loose the normal control of his or her bodily or mental faculties, or both, to such an extent that there was an appreciable impairment of either or both of these faculties at the time of injury.” So it’s a little more of a subjective standard.
Contesting the employer’s defense that a worker is an independent contractor and not an employee
Many times, an employer will claim that a carpenter does not qualify for worker’s compensation because the worker is just an independent contractor and not an employee. Generally, only employees are entitled to workers’ compensation benefits.
Many times, the employer is wrong. Many times, you are really in the category of an employee, even though the company that hired you says otherwise. The employer does not have the final say over your employment status. Our firm works aggressively to show that you are indeed an employee. The basic test for determining your employment status is whether your employer has control over when and how you work. Some of the factors that indicate that you are an employee and not a contractor include (that the employer did control your activities) are:
- You work a 40-hour week or more hours each week.
- You are not working for multiple entities, but exclusively the employer.
- The employer decides where you work.
- The employer decides when you work.
- The employer pays you weekly rather than per job.
- The employer decides and provides what tools you use to perform your job.
- The employer decides what safety protocols, such as wearing helmets you must meet.
- The employer decides when you can eat and when you’re entitled to a rest break.
- The employer requires that you wear a company-branded T-Shirt at all times while working
Note that the presence or absence of each and every one of these factors is not required, but generally, someone who has all his own tools, is paid per job, shows up to the job whenever he or she is free to do so, and works for multiple customers or entities each month, would generally be considered a subcontractor and not an employee.
Another Common Issue in Carpenter and Other Construction Cases: Lack of Workers Compensation Insurance
Let’s face it. Owning your own construction company can be an expensive endeavor, and it is well known that injuries are common in carpentry and construction in general. So, we often find that the small operators with just a few employees will attempt to “fly under the radar,” and fail to purchase workers compensation insurance, or let their insurance lapse when business is slow. What do you do if you are injured on the job and this happens?
In most cases, assuming your employer is part of larger project, things can be remedied. In Virginia, if your direct employer did not have workers compensation insurance, then we can look to the contractor who hired your direct employer, oftentimes the general contractor on the job) and if that contractor had workers compensation insurance, then you would come under that employer’s insurance. That higher-level contractor is what is known as your “statutory employer” for the purposes of workers compensation.
What if your employer was the only contractor on the work site and failed to carry workers comp insurance? Is there still anything you can do if you are hurt on the job? The answer, at least in Virginia, is “yes.” First you must prove your employer was required, under Virginia Law, to purchase and maintain workers compensation insurance. That typically means he or she must have had 3 persons regularly employed in the business. Assuming that is true, Virginia fortunately has available the Uninsured Employer’s Fund or UEF, which is maintained by the Commonwealth for just such situations. Once they get involved in the claim, assuming you can prove your claim, the Fund, which is maintained by the Office of the Attorney General, wills step in and cover you.
Unfortunately, unlike Virginia, in North Carolina, if the principal contractor obtained a certificate from the subcontractor that your employer was properly insured at the start of a project, and your employer let his or her insurance lapse, and the principal contractor was unaware of the lapsed policy, there is no recourse against the principal contractor, unless the principal contractor elected to purchase a blanket policy that covered all subcontractors and their employees on the project.
And it unfortunately gets worse in North Carolina, because there is currently no type of Uninsured Employer’s Fund in North Carolina. So, in other words, in many cases, if you are hurt on the job in NC and your employer failed to carry workers’ comp insurance, you essentially have no recourse.
What they do have are harsh consequences under the law for an employer that was obligated to purchase workers compensation insurance in North Carolina, but willfully failed to do so. N.C.G.S. 97-94 says the employer is liable to be prosecuted for a felony in such circumstances. There are also substantial fines of $50-100.00 per employee PER DAY for this violation.
But this is a small consolation for the thousands of N.C. Workers who get injured on the job who have no recourse. We believe that is long past time for North Carolina to do as Virginia has, and establish an Uninsured Employer’s Fund. In 2013, a House Bill was introduced in the State Legislature in Raleigh establishing an Uninsured Employer’s fund, but failed to pass. As in Virginia, the money could be raised from a modest tax on employer workers compensation insurance premiums paid in North Carolina. And of course, the fund should be administered by the Attorney General’s office and should aggressively pursue re-payment of monies paid out from those employers who failed to purchase workers comp insurance who must be covered by the fund.
What workers’ compensation benefits are injured carpenters entitled to claim?
Once a carpenter notifies his/her employer that an injury has occurred (the notice should be given promptly to the employer or a supervisor promptly, certainly no later than 30 days after the accident), the carpenter can claim the following benefits for worksite injuries:
- Medical benefits. Carpenters who qualify for workers’ compensation benefits are entitled to have their medical bills paid for as long as they need help to heal and improve their health. They are also entitled to additional medical care to ensure their health does not worsen. These expenses include emergency room (ER) care, surgeries, hospitalizations, visits with your general physicians, visits with specialists, physical therapy, vocational therapy, rehabilitation therapy, assistive devices such as prosthetics and canes, and medications. Carpenters should be entitled to these benefits for as long as any medical care is reasonably likely to improve their medical condition.
- Temporary wage loss benefits. (Temporary Total Disability or TTD) While a carpenter is seeking medical help to improve his/her health, workers are entitled to temporary wage loss benefits. These benefits are generally about 2/3rds of the carpenter’s average weekly wage before the workplace accident occurred, potentially for up to 500 weeks.
- Temporary Partial wage loss benefits (Temporary Partial Disability or TPD) If the carpenter is able to return to work albeit at a rate that gives him or her fewer hours or less pay due to his physical restrictions from the work accident, then the carpenter may be entitled to 2/3rds of the difference between the pre-injury average weekly wage and the “light duty” job rate of pay.
- Permanent disability benefits. (Permanent Partial Impairment or PPI) When a carpenter reaches the point of maximum medical improvement or MMI, (the point at which additional medical help is not likely to improve the health of any worker), an evaluation is made of the carpenter’s injuries. Assuming the worker has returned to work, permanent impairment to specific body parts such as hands, arms, feet or ankles may qualify the carpenter for additional workers’ compensation benefits (generally 2/3rds of the worker’s average weekly wage for a specific number of weeks). The amount of the permanent disability benefit is typically expressed as a percentage of the maximum number of weeks available for impairment to that specific body part. The amount of impairment is typically determined by a lengthy test known as a Functional Capacity Examination (FCE).
- Vocational rehabilitation “benefits”. If a carpenter is not able to return to the work he/she did before the accident, the carpenter may be entitled to attend school or learn a new trade that will allow the carpenter to work at a new type of job; however, as noted elsewhere, vocational rehabilitation is rarely utilized by insurance carriers as a benefit, but rather a tool to attempt to derail the injured worker’s claim. One must be very careful to comply with all reasonable directives of the vocational rehabilitation counselor, or you are handing the insurance carrier an easy victory over your claim.
At Joe Miller Law Ltd., our Virginia and North Carolina workers’ compensation has been fighting for injured workers for more than 30 years. We’ve helped thousands of injured employees obtain just compensation for all their medical expenses, temporary wage loss benefits, and permanent wage loss benefits. We fight to show carpenters are employees. We work to ensure your employer doesn’t force you back to work before you’re healthy. We work with your medical team to show just how serious your injuries are – and why your injuries prevent you from working.
Our firm currently uses remote services for clients who wish to talk with us from home. To use our remote services, please look at our New Electronic Case Review.