When an individual is hurt in a work site accident often we see the defendant employer argue that the individual was an employee and thus only entitled to workers comp benefits for their injuries. Why do they do this? Because in the Pennsylvania workers comp arena, injured workers cannot claim pain and suffering (non-economic damages) as part of their injury. This limits the employers financial exposure no matter how negligent the employer was. Just such a situation arose in the 2010 trial of Decker & Gillingham v. Consol Energy.
On June 12, 2007, plaintiff Clifford Decker, 54, an applications engineer, and plaintiff David R. Gillingham, 48, an electrical engineer, were both working on a project at the Consol Energy research plant and facilities in Library. The control room for the project was located on the second floor of one of the approximately 19 buildings located at the fenced, secured property. During the course of the men's duties that day, they exited the control room and began to descend an outdoor steel staircase which, along with a similar staircase on the opposite side of the building, was the only means of egress from the second floor. As Decker and Gillingham were descending the staircase, near the top of it, the structure promptly collapsed, causing them to freefall nearly 14 feet to the ground.
Decker and Gillingham sued Consol Energy Inc. for negligence in separate suits that were later consolidated.
The plaintiffs' engineering and architecture experts both testified that the bolts that secured the steel staircase to the side of the building were corroded and simply gave way, resulting in the collapse. The experts tested the structure and concluded that the defendant failed to properly inspect, maintain and repair the structure, which was over 40 years old.
Consol denied the allegations and maintained that the company had no notice of the staircase's condition. The defense said that prior to the collapse, there was no evidence of any problem with the staircase, as numerous employees (including the plaintiffs) used the staircase hundreds of times without incident and without any swaying, cracking or movement. Moreover, the visible exterior of the fasteners/bolts showed no signs of deterioration, said counsel. The defense theories were supported by its own engineering expert.
Defense counsel also argued that Gillingham was actually an employee of Consol Energy at the time of the accident, since he was a "borrowed servant" of an employment agency that had placed him with Consol. Pursuant to state law concerning workers' compensation, the defense argued that Gillingham's work status at the time of the accident prevented him from asserting noneconomic damages (pain and suffering). The defense also produced a waiver that Gillingham had signed, which it said proved his work status.
Decker was taken by ambulance, while Gillingham traveled by car, to a nearby hospital where both were treated for their respective injuries. Decker suffered fractures to the femoral neck, mid-shaft femur and distal femur of his left leg as well as a left intertrochanteric femur fracture of his hip, a knee injury and various lacerations, abrasions and contusions. As a result, Decker was non-weight-bearing for over five months and used crutches for an additional three months and then a cane. He returned to work in a diminished capacity and continues to receive workers' compensation benefits, which he sought to recover in the amount of $200,000. The plaintiff also sought to recover $1.25 million in total economic losses.
Gillingham suffered a right shoulder impingement which required arthroscopic subacromial decompression; a torn right rotator cuff that required arthroscopic repair; right arm lipoma that required open lipoma excision; right shoulder pain; pain and numbness in his right arm, hand and elbow; left shoulder pain. Gillingham sought to recover a $72,744.18 workers' compensation lien and 50,000 in past lost earnings.
Decker and Gillingham's respective spouses joined in the action, asserting loss of consortium claims.
The jury found that Consol was negligent and that its negligence was a factual cause in bringing about harm to the Deckers, who were awarded $5 million, and to the Gillinghams, who were awarded $2.8 million. The jury expressly found that Gillingham was not the borrowed servant of Gillingham at the time of the accident and that the release and waiver of liability signed by Gillingham was not valid.
Attorneys Conboy, Brown and Parise should be congratulated for their representation of the plaintiffs in this case. They navigated their clients' case through some pesky defendants and helped secure just compensation for their clients.
-- Share this post :