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Construction Site Injuries - Third Party Claims - Defenses

Construction site injuries allow the injured worker to collect workers' compensation from his or her employer and also the right to file a claim against any third party (anyone other than his employer) that causes the injuries. The employer would provide workers' compensation benefits which replaces wages when the injured worker is unable to work and pays the medical bills.

There is no provision for pain and suffering or related damages when filing a workers' compensation claim because the injured worker is not able to sue his employer for negligence and is limited to collecting workers' compensation.

However, if the construction site injuries are caused by the negligence of a third party (someone other than the employer) then the injured worker can collect workers' compensation and can also sue the third party for negligence allowing him to recover pain and suffering damages and related damages in addition to collecting workers' compensation.

A construction worker that is a laborer that is injured at the construction site collects workers' compensation from his direct employer, but if the injuries are caused by the negligence of another subcontractor such as an electrician then he can also sue the subcontracting electrical company in addition to collecting workers' compensation.

A defense to a third party claim in some states is that of "dual employment doctrine". This occurs when the employee is a "borrowed servant" when his employer is a temporary employment agency and assigns him to work for a subcontractor at the construction site. The temporary employment agency employs the construction worker and assigns him to a subcontractor at the construction site making the construction worker employed by the temporary agency a "borrowed servant". The employee is therefore under the "dual employment doctrine" an employee of both the temporary employment agency and the subcontractor he is assigned to. Because he is employed by both in states that follow the "dual employment doctrine" if he is injured while working while assigned to the subcontractor even though his original employer was the temporary employment agency he cannot sue the subcontractor for negligence. He can only collect workers' compensation from the temporary employment agency who was his initial employer. The subcontractor he was assigned to is protected under the "dual employment doctrine" and is exempt from being a third party.

In Rhode Island the "dual employment doctrine" is followed and neither the temporary employment agency or the subcontractor can be sued for negligence and only workers' compensation can be collected. In Massachusetts, where the "dual employment doctrine" is not followed, the employer is the temporary employment agency who would pay the workers' compensation and if the worker is injured while assigned to the subcontractor he could sue the subcontractor for negligence as a third party.

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