Construction Accident Attorney Peter Rotatori, Ill Successfully Resolves an OSHA Excavation Trench Liability Fall Case For in Excess of $300,000.00 Plus a Full Substantial Employer Workers' Compensation Subrogation Lien Waiver.
The plaintiff was an experienced excavator and heavy equipment operator from Newtown, Connecticut. He was employed by a construction company constructing an addition to an existing building off of a Connecticut state highway. While attempting to exit an interior foundation wall to get back to his excavator, the plaintiff fell into an excavation trench that was filled with mud. The trench was approximately six to eight feet in depth. The construction site and excavation trench had a myriad of Federal OSHA violations which included removal of a safety ladder and an improper excavation trench means of egress. The plaintiff's fall resulted in a low back injury.
The Rotatori Law Firm of Stamford, Connecticut, a personal injury law firm, took a double barreled approach prosecuting both a workers' compensation case in the New Haven, Connecticut Workers' Compensation Commission Third District and a third party civil negligence action in the Danbury, Connecticut Superior Court. The workers' compensation action was brought against the claimant's employer. The third party civil action was brought against the construction company that managed the construction project and a variety of sub-contracting companies working at the construction site.
This case was resolved for an aggregate workers' compensation and civil tort settlement of $310,000.00. Plaintiff's counsel also negotiated a full subrogation waiver by the employer's workers' compensation carrier in the amount of $256,000.00.
This case had a number of challenges that made it a hotly contested third party action. One underlying case issue was whether the plaintiff had preexisting mechanical low back pain with lower extremity radiculopathy.
Approximately six months prior to the accident the plaintiff, a laborer, was diagnosed by his internist with over use mechanical low back pain with leg radiculopathy. The plaintiff maintained that the excavation trench fall resulted in a substantial aggravation of both his underlying low back and leg medical condition. The plaintiffs construction accident resulted in an orthopedic and physiatry diagnosis of mechanical back pain, radicular leg pain, discogenic back pain.
The plaintiff was not a lumbar discectomy or fusion surgical candidate. The plaintiff tried lumbar nerve blocks. The nerve blocks failed to help. The plaintiff's only pain remedy was prescription pain medication. The plaintiff's use of pain medication, however, adversely affected his ability to operate heavy equipment.
Another major case challenge addressed underlying party liability. Control of the construction site defect, an element of proof required in a construction accident premises liability case, was a hotly contested issue.
In discovery, by way of an accident investigation report prepared within minutes after the fall, the construction management company safety officers admitted both control of the equipment and location of the fall. In deposition testimony, the construction safety officer also admitted control of the wall where the plaintiff fell. In the civil third party case, the defendant management company denied control of the site defect arguing that the general contractor, the plaintiff's employer, was in control of the construction site.
The plaintiff had no civil tort remedy against his employer because his employer had the workers' compensation exclusivity defense. In Connecticut, however, by way of law, it is possible to have multiple parties exerting dual control over a construction site in a premises liability construction accident case.
Another plaintiff challenge was the issue of comparative negligence. Defense counsel for the management company created an issue of fact. Defense counsel did this by articulating that the plaintiff should have been able to see that a ladder on the other side of the construction wall was missing because the interior of the excavation trench, where the plaintiff was standing immediately before he climbed the wall to get back to his excavator, was substantially compacted with fill.
Defense counsel also articulated that a taller ladder depicted in a post-accident scene discovery photo which would have exceeded the wall height by over three feet was at the other end of the excavation trench and should have been used by the plaintiff.
Finally, there existed inconsistent testimony by a fact witnesses who testified that the missing exterior trench step ladder was in a different location from the location testified to by the plaintiff in his deposition.
Civil construction accident attorney Peter Rotatori, III successfully resolved both the workers' compensation case and the civil third party tort case. The case took almost four years to fully resolve. The plaintiff used civil engineer Charles Elias of Essex, Connecticut as its engineering expert. The party names remain confidential.
