What is the most dangerous part of most construction jobs?

Working in confined spaces.

Confined spaces present a number of dangers, including risks of fire, risks of suffocation, and risk of collapse (particularly in trenching situations).  These types of injuries become all too frequent when employers try to cut corners on safety rules.

Recently, a tragedy in Sioux City, Iowa really brought those dangers to light.  Several workers in North Sioux City were working to unclog a sewer line when the men were overcome by sewer gas, resulting in the death of two of the workers.  As is often the case in these types of tragedies, the early reports indicate that safety rules were being ignored, leading to the risks.  OSHA and IOSH (Iowa’s equivalent of OSHA) will be investigating  the confined space issues.

Most in the construction industry know the risks associated with working in confined spaces, and there are a number of regulations and safety rules designed to make these situations as safe as possible.  If these rules are followed, these types of deaths don’t have to happen. And yet, they do.  Instead of trying to figure out ways to cut corners, Texas construction companies would do well to take a minute and look at the Iowa situation to see what we can learn from that tragedy.

My friend Steve Lombardi, of the Lombardi Law Firm in Des Moines, is doing a good job of covering the story.  If you’re interested in learning more, check out his blog.  You can also check out the following:

• Did the Sioux City Sewer Pipe Workers Receive Confined Space Training?
• North Sioux City Sewer Line Worker Death Is Covered By Worker’s Comp
• OSHA Investigates N. Sioux Sewer Death
• OSHA Investigating Deaths of Iowa Men in SD Sewer
• Trench Safety

I was having a talk with a fellow personal injury lawyer the other day, and he was griping about the result of a mediation.   This was a small car wreck case, and the insurance adjuster dropped the “bombshell” during the mediation that she discovered that the plaintiff had run a 5k race after the car wreck.  And not only had the plaintiff run the wreck, but the plaintiff posted a faster time after the wreck than he did the year before.

There are two things to learn from the story.  First, if you’re involved in a wreck or accident, the other side will investigate you.  In this day and age of the internet, it’s really cheap and easy for defense lawyers or insurance adjusters to spend a little time and find out a lot of information about your life.  If you have skeletons in the closet, they’ll find them, even in small cases.

The more important lesson is to be honest with your lawyer.  When we were remodeling our house, our builder used to say, “there are no problems, only issues.”  If a client tells his lawyer something bad, the lawyer can usually deal with it.  But when the client doesn’t tell the truth or fails to include something in the hopes that no one will ever find it, that often becomes a problem.  These types of problems ruin cases.  So if you’re injured, learn from others’ mistakes and tell your attorney the truth.

 Not being honest with your attorney is only one of many mistake you can make that can ruing your case.  If you or a loved one has been injured in a wreck, on-the-job injury, or otherwise injured by someone else, request a copy of our book, HOLDING WRONGDOERS ACCOUNTABLE: Avoiding Mistakes That Can Ruin Your Texas Accident Claim.  I think you’ll be glad you did.

I often have the misfortune of telling potential clients that I can’t help them because they didn’t come to us soon enough.  Clients often think they’re doing great to call us several months before a statute of limitations runs.

But that’s not always enough notice.  A number of cases require immediate attention.  For example, in a premises liability case, for best results, we need to be able to inspect the scene as close to the date of the accident as possible.  When conditions change, it’s hard, if not impossible, to go back and recreate who was at fault.  Sometimes clients can take photos and document the scene so that we do those types of investigations, but it’s safer to get the expert and attorneys out there before any changes are made.

And don’t get me started with trucking cases.  In a serious trucking case, the trucking company will have its experts at the scene, inspecting vehicles, etc within a few hours.  That’s a huge advantage.  An injured person obviously won’t be able to timely research a trucking case unless they hire an attorney early.

Even in some of the most basic car wreck cases, early investigation can be important.  Police officers investigate hundreds of accidents per year.  You don’t need to talk to them in every case, but when you do, you need to talk to them early so they remember the wreck you were in.

So that’s the answer.  Talk to a personal injury lawyer early.  Once you miss the time to do investigation, you can’t get that back.

Waiting too long to contact an attorney is only one of many mistakes that accident victims make that can hurt their claims.  If you’ve been injured in a Texas accident and you want to avoid those mistakes, order our free book HOLDING WRONGDOERS ACCOUNTABLE: Avoiding Mistakes That Can Ruin Your Texas Accident Claim.  We’re on a mission to make sure that insurance companies and other lawyers don’t take advantage of accident victims, and a lot of the advice in the book is designed to prevent that from happening.

A road construction worker died in a Tuesday afternoon construction zone accident in Lockhart (my hometown — in fact, you’ll pass a large Schuelke Road sign as you drive down 183 from Austin to Lockhart).  It appears that the worker was killed when a construction vehicle backed over him.

These types of events are tragic, but they’re not much of a surprise.  Work zones are routinely one of the most dangerous parts of the road for both motorists and for the workers.  However, this wreck was unusual in two respects.  Generally, the more dangerous construction zones are those on highways.  Though details are sketchy, this wreck appears to have occurred on a residential street (though one of the busiest streets in town). 

Also, work zone injuries to road workers are usually the result of unsafe motorists — not from other road workers.   Protections and protocols should be in place to protect workers from one another.  Sadly, those protections must have been absent or improperly used in this case.

I will try to update this post or provide other posts as more develops.  In the meantime, if you’re interested in this topic, you can see my prior posts on work zone accidents:

• Work Zone Safety — Give Your Undivided Attention In Road Construction Zones
• New York Times Speaks Out On Work Zone Safety And Car Wrecks

A recent Ohio Supreme Court decision allows defendants in personal injury cases to introduce evidence that the plaintiff’s medical providers “wrote off” charges for the plaintiff’s care.   Most health insurance companies have agreements with medical providers that the medical providers will accept a reduced amount as payment in full for procedures.  For example, in the Ohio case, the plaintiff was billed $21,874.80 for care.  This is the amount that the provider would have charged a patient without insurance.  However, because of the insurance contract between the patient and the provider, the insurance company paid $7,483.91 and wrote off the rest.

The Ohio trial judge said only allowed evidence of the full $21,874.80 in charges, but the Ohio Supreme Court said that the evidence of the write off should have been admitted.  The opinion is here. 

A number of other states have held the opposite.  How do we deal with it in Texas?  Frankly, no one is sure.

Historically, Texas has not allowed in evidence of the write offs.  But in the 2003 legislative session, the legislature adopted a rule that reads:

In addition to any other limitation under law, recovery of medical or health care expenses incurred is limited to the amount actually paid or incurred by or on behalf of the claimant.

What does that mean?  Without defining “paid” or “incurred” the statute is a model of poor draftsmanship.  Despite the statute being around for seven years now, courts still haven’t come to a good conclusion of what it means.  I can tell you that in most Travis County courts the judges aren’t allowing in evidence of the write off, but they will reduce the jury’s award for medical expenses after the verdict is rendered to equal the amount that was actually paid, including insurance payments, co-pays, etc.

The result of this is that in two hypothetical cases — one where a driver runs over an employed person with insurance and one where a driver runs over the same employed person without insurance — there will be two very different results due to the existence of health insurance.

But all of this begs the question, “Why should a bad driver, a dangerous doctor, or an unsafe employer get a benefit from your health insurance?”

When there are write offs, there are two possible outcomes.  First, the plaintiff could be awarded the full amount of the medical charges even though some are never paid due to the reduction.  This would be a benefit to the plaintiff.  Second, the plaintiff could be awarded the reduced amount, which would mean the defendant gets a benefit from the health insurance reduction.

So we’re faced with deciding which of two sides gets a benefit:  the side that purchased health insurance or had an employer purchase health insurance or the side that committed the wrong that resulted in the suit.  If you’re choosing between the two, why should the wrongdoer get the benefit of the insurance?  I’ve had a discussion about this law with a number of different people, and I’ve yet to hear any good reasons why benefits of health insurance should not go to the innocent party, but should instead go to the wrongdoer.  If you have suggestions, let me know.

And a h/t to Nashville, Tennessee injury lawyer John Day & his blog Day on Torts for the link to the opinion.

Crane accidents are on the rise at construction sites in the US. Many of these accidents involve fatalities.

“A Port Arthur, Texas, refinery had some bad news recently when a contract construction worker was killed after a crane accident at a work site. The mishap happened in an area slated for further expansion, which was underway the day of the accident itself. Unfortunately, when rescue crews arrived in response to the call, the worker had died of his injuries,” recounted Brooks Schuelke, an Austin personal injury lawyer.

While the police, the refinery and the company that operates the refinery were aware of all the details of this horrific accident, many of them were not released pending further investigation. There are a number of scenarios that may have occurred to contribute to the accident, including an improperly maintained crane; a leased crane from another company that was defective; the operator not paying attention to what he was doing; the boom was defective or not properly maintained; regular safety checks were not carried out as required; or crane operator error. These are the things that an Austin personal injury lawyer needs to know to represent his client.

It won’t be until some of those details are sorted out that the family of the deceased will have any peace in understanding why they lost their loved one so suddenly. At this point, it would be a wise move to contact a seasoned attorney about the circumstances of this case and find out what may be done. “While a lawsuit will not bring their loved one back, it would help them continue on with some financial security,” explained Schuelke.

In many cases such as this, the details are very important in how the attorney puts together a case, specifically because it makes an enormous difference in who is sued. “For instance, if the crane was not properly maintained by the company that owned it – the company the man worked for – that would mean one thing. If the crane were leased from someone else and it was defective or not safety checked, that would mean another thing. All the details are vitally important to obtaining justice for those left behind,” Schuelke said.

The kind of lawsuit that would be filed here is a wrongful death lawsuit, which means there is a specific deadline to file under the statute of limitations. While is it extremely difficult to function emotionally and mentally after just losing someone you love, it is imperative you take action by consulting with an experienced Austin personal injury lawyer.

Contact Perlmutter & Schuelke LLP at http://www.civtrial.com or (512) 476-4944.

Highway construction zones pose unique dangers to construction workers. One recent wreck shows the potential tragedy posed by construction zones.

“This is a case we heard about from Indiana that involved the death of a construction worker who was filling potholes in a closed off area of the local expressway. It was officially listed as a hit-and-run because the driver of the car took off on foot, leaving the car behind. Police were called and had to mount a manhunt to locate the driver,” said Brooks Schuelke, an Austin personal injury lawyer.

This is a very unusual case and the police report has some speculation in it that the driver of the car who hit the construction worker was likely under the influence. The work site was plainly and clearly marked with signs, barrels blocking the roadway and blinking neon markers.

“Despite all the warnings, the driver of a 1993 Mercury Cougar plowed through the area and hit 45-year-old Mick Beutall (names have been changed to protect the victims) so hard that he smashed through the windshield of the car on impact. The body also hit the driver inside the car,” outlined Schuelke.

Beutall’s fellow workers formed a ring around the car to stop it from leaving the accident scene. This didn’t deter the driver, who hopped out and took off on foot across the highway. The police are certain they will track the person down since they have the car as evidence. “Once the suspect is in custody, they will try and answer some burning questions, such as why the driver went right through the marked construction site,” Schuelke commented.

“In this strange case, while it may be that the driver was under the influence of something, this could just as easily have been a mechanical problem with the brakes, a vision problem, a blown tire or the driver was distracted by something inside the car,” explained Schuelke. “The Beutall family may wish to speak to a qualified Austin personal injury lawyer about filing a wrongful death lawsuit. There is negligence involved here, one of the prerequisites for a personal injury lawsuit,” advised Schuelke.

Contact Perlmutter & Schuelke LLP at http://www.civtrial.com or (512) 476-4944.

I’ve heard from two attorneys the last few days that were trying to avoid a difficult situation involving on-the-job injuries.

For background, Texas is a worker’s comp state.  If your employer has worker’s comp then you are, for the most part, barred from suing your employer if you’re injured on the job.  On the other hand, if your employer does not carry worker’s comp  (we call these employers “non-subscribers”) then you can sue your employer for an on-the-job injury.  

Some non-subscribers have “fake” worker’s comp policies.  Typically, these are plans that will pay injured people a portion of their lost wages and their medical bills, but the plans won’t pay for pain and suffering, impairment, mental anguish, etc (these are called “non-economic damages”).  Under the law, injured workers are often entitled to seek benefits under the plan while still suing their employer for the damages that the plans don’t cover.

The problem?  Many industrial employers are now requiring their employees to sign a release before allowing the employees to seek benefits under the plan.  Thus, the injured are giving up their rights to seek a recovery for non-economic damages in exchange for accepting a partial recovery.  The potential recoveries that these employees are giving up may be substatial. 

Now, in some situations, that may be in the employee’s best interest.  But in many situations, it isn’t.  And injured employees who don’t know their rights can’t make informed decisions until they talk to an attorney and understand the options they have and the consequences of their decisions. 

So, if you’re injured on the job, I encourage you to talk to an attorney before signing any agreement that may give up your rights.