NC Work Injury Tort Settles for $5M with Another $5M in Comp Benefits to Come

A laborer in Asheville, North Carolina, working at a hotel construction site, fell through a four-story air conditioning shaft in 2018, leaving him paralyzed and in need of regular care.

Four years later, the 34-year-old has settled his civil suit for $5.2 million. A workers’ compensation settlement is still pending. With lifetime benefits, the permanent total disability could end up providing another $5 million, a significant amount for a work injury.

“We’re real pleased with that,” said the worker’s attorney, Jay Kerr, of Asheville. “It’s been four years of litigation. I worked every day on the case.”

Kerr declined to release the name of the claimant or the employers and insurers involved, since part of the case is continuing and defense counsel had not been consulted. The case number was not provided and details were not available from the Superior Court in Buncombe County.

Despite the fact that it was a work injury, the tort claim was allowed to proceed. The worker had been hired by a subcontractor for another jobsite, who then assigned the man to help out another subcontractor at the hotel project. Since he was not an actual employee of any employer at the site of the injury, that allowed Kerr to sue the general contractor and subcontractors as third parties, he explained.

But it wasn’t cut and dried. North Carolina law allows contributory negligence, and defense lawyers argued that the laborer should have known that the large piece of wood was covering an air shaft and was not simply scrap lumber.

“For a construction case, this was pretty big – especially with contributory negligence involved,” Kerr said about the size of the settlement.

The comp insurer also had filed a $1.2 million subrogation lien, seeking reimbursement from the tort case settlement. Kerr said he was able to negotiate that down to $110,000. State law can negate subrogation if negligence by the employer can be demonstrated, he noted.

The incident happened in December 2018. The man was assigned to clean up wood scrap and debris from the roof of the hotel that was being built, Kerr explained. A large piece of oriented strand board, or OSB, which is similar to plywood, was covering the air shaft. When the man lifted it, thinking it was scrap, he stepped forward to stand it up, and stepped into the 40-foot tall, open shaft.

The worker suffered a spinal cord injury that left him a paraplegic with bladder and bowel dysfunction, as well as a mild brain injury. Kerr said he was able to show that the OSB was weathered, had not been marked with warnings as required by safety regulations, and had not been barricaded. While the board had been nailed down at one point, it may have been pried up by an unknown person. The worker had not been properly trained, his lawyers said.

“Plaintiff’s counsel developed convincing evidence of the employer’s negligence based on a failure to provide proper training to the plaintiff on hazard detection regarding debris removal around fall hazards,” the North Carolina Lawyers’ Weekly publication wrote this week. “The plaintiff had neither previously worked on a commercial construction project nor been provided any relevant safety training.”

The plaintiff, who also was represented by attorney Ervin Ball, argued that the contractors and subcontractors at the site retained joint control over the hazardous condition “and thus owed respective legal duties to prevent the plaintiff’s fall based on contractual obligations related to OSHA regulations and other industry safety standards,” Kerr noted.

The workers’ compensation wage-replacement in the case may amount to just a few hundred dollars a week. North Carolina’s comp statute allows two-thirds of the worker’s preinjury average weekly wage, up to a maximum of about $1,200, according to the Workers’ Compensation Research Institute.

But the state also allows lifetime benefits, including medical. For a young man, lifetime benefits over the next few decades could total as much as $5 million, Kerr said.

Topics North Carolina