New York Labor Law (hereinafter “Labor Law”) routinely provides Plaintiffs with access to an unjustified advantage when litigating a construction accident case. To date, New York remains the only state in the country “which imposes strict liability [on general contractors and property owners for practically all accidents occurring at a construction site.” In doing so, the legislature has become overindulgent in providing an injured construction Plaintiff with grounds to bring suit at the expense of an employer’s right to provide a defense. Although the Plaintiff- favored liability aspect of the Labor law may be justified in its intentions, little to nothing has been done to ensure an award for appropriate damages. These overlooked principals can often lead to unorthodox litigation strategies and the imposition of irrational burdens.
Because physical labor is inherent in the profession of construction, the aforenoted Plaintiffs routinely place stress on bodily extremities, joints and tendons. Intrinsically, this occurrence leads to degenerative injuries that occur over a prolonged period of time and are not the result of a single traumatic event. Notwithstanding, a traumatic event is a prerequisite, in and of itself, for labor recovery under sections 240 and 241.
In construction, degenerative injuries often go unnoticed and unreported. Consequently, discovery in these types of matters often reveal that the injured Plaintiff lacked a concrete record of medical treatment. Therefore, these workers commonly lack a record of their degenerative injuries, sustained prior to a Labor law violation and resulting action. Notwithstanding, the most prominent degenerative injuries experienced by a construction worker, including, inter alia, injuries to discs, tendons, and even bones, conveniently happen to areas in which Plaintiffs routinely experience an acute injury when falling off a defective ladder or being hit by a falling object. In conjunction with the lack of medical records documenting prior injuries, Plaintiffs and their counsel possess the ability to fraudulently claim all injuries discovered after an accident to be acute. This fraudulent occurrence routinely burdens employer Defendants in proving a negative at trial with nothing but medical expert testimony to support a defense.
Are the Plaintiff’s injuries acute?
An acute injury is one that “happen[s] suddenly, such as when a person falls, receives a blow, or twists a joint[.]” It is these injuries, and these injuries alone, that provide grounds for an injured construction worker to recover damages against an employer for violations of the Labor Law at question. Albeit, this does not bar a construction worker from receiving compensation from a degenerative injury. In fact, these same workers in almost all instances are able to avail themselves of workers compensation through the state. However, in the latter scenario, compensation is typically minimal, which could incentivize Plaintiff’s, and their attorneys working on a contingent fee basis, to claim that a degradative injury is acute, in an effort to maximize damages.
While one may argue that a Plaintiff who has experienced a degenerative injury is likely to have received medical treatment and or reported the injury in some manner, this assumption is a fallacy. National U.S. surveys, comprising statistics of the construction industry at large, suggest that up to 68 percent of work-related injuries and illnesses go unreported and untreated. Hence, even with competent discovery, the only manner in which a defendant could undoubtedly ascertain a degenerative injury is through a Plaintiff’s admission.
Furthermore, it is likewise incorrect to assume that a construction worker is inherently incentivized to report a work-related injury.A published study conducted by the International Journal of Occupational Safety and Ergonomics revealed that out of the construction workers surveyed, 27 percent admitted that they had failed to report a work-related injury. The leading reasons for the omission included: (1) said injuries being “part of the job”; (2) a “social pressure” to not seem weak by supervisors and co-workers; and (3) a disincentive to receive a lower salary if they were to miss work.
While the above rationale may appear to be commonplace by most, the legislature has failed to amend the Labor law, in any significant manner, to align with the notions that modern evidence provides. Namely, the consensus that degenerative injuries inherently occur with a lack of knowledge by an employer. Instead, there continues to be heightened burdens placed on employers to ensure workplace safety, in prevention of acute injuries, indirectly harboring inequitable Plaintiff favored litigation.
Further Complication By Counsel
On top of the challenges mentioned above, Plaintiffs’ firms may further aggravate the already complicated conditions. By sending a Plaintiff to a doctor that has a reputation of operating and/or prescribing invasive procedures at an early stage, Defendants are usually not provided with the liberty to review diagnoses and exam results until substantial medical intervention has already taken place. While a Defendant is still afforded the ability to have their own medical expert conduct an independent medical examination (hereinafter “IME”), said Defendants are still tasked with litigating a case against a Plaintiff that has undergone several surgical operations and commonly, years of rehabilitative care.
The above occurrence not only presents a heightened probability that a jury would feel sympathetic for a Plaintiff, but contemporaneously bolsters intangible damages such as “pain and suffering.” For illustrative purposes of this concept, consider the following hypothetical:
For the last 30 years, Bob has worked as a carpenter for a large but privately owned construction company in New York City. For the last decade, Bob has had ongoing lower back pain. Unbeknownst to Bob, the repetitive stress from picking up heavy materials, required by the scope of his work, caused several vertebral injuries, including disc bulges at L2-S1, L5-3, and a disc herniation at L3-5. All of the aforementioned injuries were the result of repetitive stress and not attributable to any particular fault of Bob’s employer. Bob, who struggles to make ends meet as is, never underwent an MRI of his lumbar spine due to a financial inability.
One day, Bob comes into work and climbed up an 8 foot A-frame ladder to secure a piece of wood molding to the ceiling of a room in which he was working. However, one of the legs on the ladder was missing a rubber gromet and as result, the ladder tipped over when Bob was on top. Bob fell to the floor and landed on his left side, causing instant pain to shoot up both his upper and lower left extremities, as well as a welt on Bob’s head. When Bob arrived at the hospital, via ambulance, he was dazed and confused from what had just transpired. When Bob was asked by medical personnel where he was experiencing pain, he replied everywhere. Consequently, and in addition to multiple cat scans and x-rays, an MRI of Bob’s left shoulder, cervical spine, lumbar spine, and left knee were conducted. In addition to a strained rotator cuff, requiring 6-8 weeks of physical therapy, and a fractured tibia, that would heal without surgical intervention, the MRIs revealed Bob’s pre-existing back injuries.
After leaving the hospital the next day, Bob called a personal injury attorney that he saw on a billboard on his drive home. The attorney immediately accepted Bob’s case and instructed him to see three doctors that he knew. Within two months, but prior to a complaint ever being filed, Bob underwent a spinal fusion and three subsequent revision operations on his lower back. As a result of these operations, Bob has been bed ridden for the last three months and has experienced more pain than he ever had before.
In the above scenario, Bob will likely claim damages in excess of $1,000,000.00. However, if Bob’s back injuries, including his three surgeries and rehabilitation time, were out of the question, a court would likely find a demand above $20,000.00 to be grossly disproportionate. While it may be possible that Bob’s accident aggravated his pre-existing back problems, a discussion outside of the scope of this article, Bob’s employer, while defending the above action must prove circumstances that were not even known to Bob himself. Although Bob’s employer will likely retain a medical expert who will review Bob’s MRI results and opine that his disc budgies and herniations were degradative, preceding the subject accident, Bob’s surgeon will testify to the contrary.
Assuming the matter reaches trial, the jury will hear from Bob and learn that he is depressed from not being able to walk without excruciating pain. In addition, the jury will learn that Bob is no longer able to engage in any of the activities that provide him with joy, including attending his minor son’s sporting events or going out to dinner with his beloved wife. Additionally, Bob’s family is now in financial distress. Although Bob may be receiving enough money through workers compensation to feed his family, he had to sell his home and move into a Section Eight apartment. Bob’s eldest son was also forced to drop out of college to help provide for the family and care for his ailing father.
While Bob’s accident was undoubtedly a tragic event that resulted in devastating consequences, Bob’s attempt to recover a large sum of damages against his employer is inapposite to the traditional notions of justice. Cases like Bobs occur all the time. In these cases, it is clear that the Plaintiffs, at some point in time, experienced a serious injury which required substantial and invasive medical intervention prior to the events resulting in the respective litigation. While a Plaintiff traditionally must provide proof to establish their case, here, a Plaintiff has proof of an accident, resulting injuries, and only has medical history subsequent to the accident to disclose. Accordingly, it is usually up to defense counsel to prove a negative with nothing to work with besides an ill-informed medical expert and the notion that those who engage in physical labor are more likely than not to exhibit some type of physical injury independent of the events complained of.
How to Litigate a Construction Action Case in the Interests of Justice
As this article has flushed out only one of the prominent issues underlying construction accident cases, it does confirm that it is essential to consider legislative reforms to limit injustice from occurring. Although there is no clear-cut amendment that does not create some other prejudice, mitigation of this injustice is possible.
The practice of ethical advocacy on part of Plaintiffs and their counsel plays a critical role. In order for justice to be properly served, attorneys, as regulators of the legal profession at large, must advocate in an honest and equitable manner. Including, inter alia, admissions of dormant, but reaggravated, injuries, and honest testimony from the workers themselves.
In addition, employment practices, prior to the initiation of any litigation, can drastically protect an employer defendant in the long run. For example, if an employer required all workers to undergo a physical examination as a prerequisite to work, most degenerative and/or then- existing injuries could be flushed out. Although such occurrence may contradict HIPPA protections, employers could ensure that they would only be held responsible for reaggravation of a preexisting condition.
Because there is no suggestion when the legislature may act, at current time, it is up to the advocates of New York State to litigate cases in a commendable manner. Then, and only then, can this phenomenon be truly diminished in current time.
 This article places emphasis on the labor law following statues: McKinney’s Labor Law §240 & §241.
 See Michael LaRocca, New York Labor Law Sections 240 and 241 and priority of coverage, Swiss Re, (Dec 22, 2016), https://corporatesolutions.swissre.com/insights/knowledge/newyork_law_coverage.html.
 See e.g., James Hoffmann, Common Injuries Suffered by Construction Workers, L. Offices Of James M. Hoffmann, (Dec. 5, 2022), https://www.hoffmannworkcomp.com/common-injuries-suffered-by-construction-workers/.
 See e.g., Common Wear & Tear Injuries at Work, Ufkes & Bright, (Aug. 22, 2017), https://www.ufkeslaw.com/blog/2017/august/common-wear-tear-injuries-at-work/.
 See generally, Brian Rayhill et al., The Labor Law Issue, 14 J. Def. Assoc. N.Y. 2 (2014).
 See Timothy F. Schweitzer, Many Construction Workers Don’t Report Their Work-Related Injuries, Hofmann & Schweitzer https://www.hofmannlawfirm.com/blog/why-most-construction-work-injuries-go-unreported.cfm (last visited Mar 1, 2023).
 See e.g., Lieke C. J. van Delft et. al., Peculiar contact dermatitis in a construction worker, Pub Med Central, (Oct. 29, 2018) (discussing a construction worker who had an illness for five years but lacked medical records reflecting same).
 Compare Timothy Schweitzer, Common Causes of Repetitive Motion Injuries in Construction Work, H&S, https://www.hofmannlawfirm.com/library/construction-workers-at-risk-of-repetitive-motion-injuries.cfm (discussing repetitive motion injuries suffered by construction workers) with Hoffmann supra, note 3 (discussing common acute construction injuries).
 See Overview of Sports injuries, National institute of Health, (2001) https://www.niams.nih.gov/health-topics/sports-injuries (discussing the differences between acute and chronic injuries).
 See e.g., McKinney’s Labor Law §240 & §241
 See e.g., Workers Compensation Board, What is Workers’ Compensation?, New York State, https://www.wcb.ny.gov/content/main/Workers/what-is-workers-compensation.jsp (Last Visitied Mar. 3, 2023).
 See id.
 See Edelman & Edelman, NYC Construction Accidents: Is Workers’ Comp Enough?, H.G. Legal Resources, https://www.hg.org/legal-articles/nyc-construction-accidents-is-workers-comp-enough-45588 (Last Visited Mar. 2, 2023).
 See Hoffmann supra, note 3.
 See id.
 See id.
 See Insights, New Laws for New York Employers in a New Year: What You Need to Know as 2023 Unfolds, Fisher Phillips (Jan. 4, 2023) https://www.fisherphillips.com/news-insights/new-laws-new-york-employers-new-year-what-you-need-to-know.html.
 See e.g., Thomas Gallen & Maura Gallen v. IBEX Construction, LLC & 260 Prospect Park West Realty Corp., No. 29574/05
Thomas Gallen & Maura Gallen v. IBEX Construction, LLC & 260 Prospect Park West Realty Corp., 2008 WL 4093277, 2008 WL 4093277 (N.Y. Supp. Ct. Jul. 17, 2008) (settling in excess of $3,000,000 where plaintiff sustained lumbar herniations requiring a fusion surgery).
 See Medical Expert Witnesses, Kramer & Connolly, https://www.kramerslaw.com/evidence/medical-experts (Last Visited Mar. 13, 2023) (discussing the battle of medical experts in personal injury matters).
 Bob’s employer did not cause or create all of Bob’s injuries. Henceforth, Bob’s recovery for his spinal injuries would make a non-liable party pay out damages.
 See e.g.,Draiss V. Ira Salk Construction Corp.; Sayville Plaza Development Co. V. Rise Steel Erection Corp.; Mclo Structural Steel Corp., JVR No. 197153 (Mar. 1997) (where defendant employer argued that plaintiff’s disc herniations were not the result from his alleged fall off a ladder but were preexisting).
 See Ufkes & Bright, supra note 4 and accompanying text.
 See e.g., Alvarado V. West Eden Llc; Lehrer McGovern Bovis Inc.; The Lehrer McGovern Bovis Group Inc., JVR No. 509344 (June 2005) (where defendant employer argued that Plaintiff’s carpal tunnel syndrome and disc herniations were pre existing and not traumatic, but lacked medical records reflecting same).
 See generally Jonathan Macey, Occupation Code 541110: Lawyers, Self Regulation, and the Idea of a Profession, 74 Fordham L. Rev. 1079 (2005) (discussing the self-regulation of the legal profession).