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CONSTRUCTION ACCIDENTS Accidents at construction sites can be more difficult to analyze, because most workers cannot make a direct claim against their own employer due to workers’ compensation laws in Arizona . It is often possible, however, for the injured construction worker to make a claim against someone other than his or her employer, based upon the negligence of such third party. If so, a comparative fault analysis is applied pursuant to Arizona law, under which the relative degrees of fault of everyone involved, including the injured worker, are to be assessed. The injured worker’s recovery will be limited to the percentage of fault of any negligent party who is not the injured worker’s employer. It is possible under Aitken v. Industrial Commission, 173 Ariz. 300, 842 P.2d 1313 (Ariz. Ct. App. 1992) modified 183 Ariz. 387, and related Arizona decisions, to have the employer’s degree of fault determined, along with all other negligent actors, as well and have that fault of the employer used to limit the workers’ compensation insurance carrier for the employer’s recovery of its lien claim pursuant to A.R.S. § 23-1023(C). For example, if the injured worker is paid $60,000.00 in benefits by his employer’s workers’ compensation carrier for medical expenses and loss of earnings benefits, then the workers’ compensation carrier has a lien claim under A.R.S. § 23-1023(C) for these benefits (less the injured worker’s legal fees and costs, which operate as a discount on the lien for the injured worker). Then, if the injured worker is successful in obtaining a third-party recovery, the employer’s fault percentage, as a portion of the total damages, can possibly act as a setoff against the lien claim of the workers’ compensation carrier. (For example, if the injured worker’s total damages are $200,000.00, and the employer has 25 percent of the total fault, the injured worker has 25 percent of the total fault, and the negligent third party has 50 percent of the fault, then the net recovery would be $100,000.00 against the negligent third party (50 percent of $200,000.00), and from that $100,000.00 recovery, the $60,000.00 lien claim of the workers’ compensation insurance carrier would be offset by the 25 percent fault of the employer as to the $200,000.00 total damages, which comes to $50,000.00 (reducing the lien from $60,000.00 to $10,000.00). |
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