One of the most frustrating parts of fighting on behalf of job accident victims in Pennsylvania has been the “statutory employee defense.” Although this rule most often applies in construction site accident cases, it can be used against plaintiffs—injury victims—in many types of cases where a general contractor has hired subcontractors to help on a big project.

The rule is actually embedded in Section 203 of the Pennsylvania Workers’ Compensation Act, but the clearest explanation comes from a 1930 Pennsylvania Supreme Court decision. The Court devised a five-point test—called the McDonald test—to determine the relationship between the general contractor and an injured worker. If the general contractor can answer yes to all five of these questions, it can use the statutory employee defense to escape from a lawsuit:

  1. Does the general contractor own the property where the accident occurred or does it have a contract with the owner?
  2. Does the general contractor have a presence on the work site?
  3. Has the general contractor hired another business as a subcontractor on the project?
  4. Is the work assigned something that is regular business for the subcontractor?
  5. Was the injured person an employee of that subcontractor?

If the general contractor can answer yes to each of these, then it shares the same immunity to personal injury lawsuits as every employer has under the workers’ compensation law in Pennsylvania. Even though the general contractor may have been at fault in letting the injury happen, the injured employee cannot sue for a recovery. He may be able to seek workers’ comp benefits from the subcontractor that has employed him, but in many cases those are very small firms that may not have adequate insurance.

How a 2012 court decision changed the law

Last year, the Pennsylvania Superior Court published a decision that completely stunned workers’ compensation lawyers across the commonwealth. In the case of Patton v. Worthington Associates, the Superior Court agreed with the trial court that the question of whether an injured worker is an employee or an independent contractor is one that the jury—rather than the judge—should decide. In this particular case, the jury decided that the worker who was hurt was indeed an independent contractor, and so was able to sue the general contractor at the construction site for damages. In fact, jury awarded the worker and his wife over $1.5 million in damages.

This is a huge change in Pennsylvania’s workplace laws—a change that will generally favor plaintiffs in the future. Legal experts believe that, in similar cases, juries will almost always find that injured workers should be treated as independent contractors. That means their cases cannot be automatically dismissed by the statutory employee defense. General contractors are worried that workplace accidents in Pennsylvania may cost them huge settlement or damage amounts in the future. But even if the jury finds that an injured worker is an employee of the general contractor, then the contractor may be responsible for covering income and medical benefits under Pennsylvania’s workers’ compensation law.

More than ever, you need the Bulldog Lawyers

In the wake of the Patton decision, getting a clear resolution for workplace accidents has become more complicated than ever. The new changes in the law, after all, apply to worksites involving multiple contractors, so figuring out exactly who is at fault is a daunting task. The new rules for filing lawsuits give a boost to plaintiffs, but the Pennsylvania Supreme Court could reverse this decision in 2013 or beyond. That means you cannot afford to wait if you have been injured on the job in Pennsylvania.

That’s why you should call Jay Shor and Larry Levin today to explore your legal options. If you have suffered a workplace injury and you haven’t been offered a fair deal, call the Bulldog Lawyers toll-free at 866-462-8553 today. Their Worker’s Compensation are ready now to give you a free case evaluation. When you call, we will also send you a FREE copy of The Book on Comp, our informational packet on understanding your legal rights to recovery after a workplace injury.

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