Wayne was a journeyman ironworker affiliated with the Brotherhood of Ironworkers in Perth Amboy, New Jersey. In August of 2002, Wayne “shaped up” at the union hall and was assigned to work for a structural steel contractor, Delaware Valley Erectors, as a connector, to help build a vocational high school in Perth Amboy, New Jersey.  Steel erection was part of an early phase of the project. It was Wayne’s job to scale the steel and bolt new beams into place.  Large cranes would lift the steel beams and move them into location where Wayne would install them.   The project owner hired J.V. Palmonari, Inc as the prime steel contractor to fabricate and erect the steel.  J.V. Palmonari hired Delaware Valley Erectors as the subcontrator to erect the steel.  Each contractor had years of experience working on major construction projects.  

     Falls are a serious hazard in the ironworking trade.  Approximately 75% of fatal accidents for ironworkers involve falls from elevated heights.  The large numbers of serious injuries and deaths caused the Occupational Safety and Health Administration, OSHA, and private organizations to adopt fall protection regulations and standards to protect ironworkers while they are working at elevated heights on the structural steel.  One of the most important safety standards designed to protect ironworkers was promulgated by the American National Standards Institute, ANSI, A10.13, Safety Requirements For Steel Erection”.  This standard requires fall protections for any ironworker working at 15 feet or higher.  The ANSI standard also requires prime steel contractors to draft fall protections plans for their projects and to monitor and enforce them while the work is going on.

     Compliance with these standards is essential for the health and safety of ironworkers on steel erection jobs.  Ironworkers are located at great heights off the ground, move around on narrow steel beams, and have to bend, stretch and use tools.  Prime contractors can protect ironworkers from falls in a number of ways including:  life lines and safety belts, scissor lists with safety rails and safety nets.  The rules have to be enforced by “Competent Persons” who are trained in fall protection techniques and OSHA safety codes and practices.

     Unfortunately, the prime steel contractor on this job did not draft and adopt a formal fall protection plan for this project.  The prime contractor did not provide a mandatory fall protection plan that required ironworkers to use fall protection when working in elevated locations on the structural steel.  Adequate resources were not provided for 100% fall protection.  As a result, ironworkers were climbing the steel and walking the I-Beams without being tied off or protected.

     On August 19, 2002, Wayne was transferring from a ladder leading to the structural steel on the second level of the building without fall protection, 29 feet above the ground, when the ladder slipped and he fell to the ground below.  Wayne suffered very serious injuries to his right foot, right shoulder and back.  Wayne was rushed to the hospital where doctors stabilized his condition.  Over the next couple of years, he underwent five different surgical procedures on his injured foot.  He also underwent extensive physical therapy.  While Wayne had excellent medical treatment, he was left with a significant disability in his right foot and was not able to return to the trade.  After rehabilitation was completed, Wayne had to seek more sedentary work.

     Wayne hired Levinson, Axelrod to represent him in a workmen’s compensation case and to investigate a potential third party liability lawsuit against the prime steel contractor for its negligent failure to provide ironworkers with a safe place to work.  Under the law, workers are entitled to workmen’s compensation benefits from their employer’s insurance carrier including medical benefits for authorized treatment, temporary disability payments to replace a portion of their lost wages while the worker is unable to work and an award of permanent/partial disability benefits for the consequence of the injury.  Levinson Axelrod’s workmen’s compensation department and its attorneys pursued the compensation case and made sure that Wayne received the benefits he was entitled to.  Due to the fact that the employer’s insurance carrier pays compensation benefits, the worker cannot sue his employer for negligence.  The exclusive legal remedy for an injured worker from the employer is workmen’s compensation even if was negligent. Wayne did not have to pay any moneys for fees or costs for the compensation case.  Levinson Axelrod received fees out of the award from the employer’s insurance company.

     Ronald Grayzel, Esq., a certified civil trial lawyer with 30 years of experience handling these cases, undertook the investigation of the third party liability case against the prime steel contractor, J.V. Palmonair, Inc.  Wayne hired Levinson Axelrod on a contingency fee basis.  This means that Wayne did not have to pay the law firm moneys for hourly fees.  Levinson Axelrod would only recover its fees if Wayne’s lawsuit was successful.  While a worker cannot sue his employer for negligence, he can bring a legal action against another party known as a third party responsible for his injuries.  In a lawsuit, a worker can recover his medical expenses, lost wages and receive compensation for pain, suffering and disability caused by his injuries.  If the worker is successful in the lawsuit, the workmen’s compensation carrier has to be paid back for the moneys it laid out for the worker.  Levinson Axelrod investigated the lawsuit because a successful legal action against the prime contractor would provide much more monetary compensation to Wayne than he could receive in workmen’s compensation.

     Ronald Grayzel began the investigation by obtaining all of the project records from the Board of Education that owned the project.  This request was made under the Open Public Records Act.  Grayzel reviewed the contracts and the project records and he learned that Palmonari was required by contract to provide safety to the ironworkers and to assure compliance with OSHA.  Progress photographs obtained by Grayzel documented the fact that there was no fall protection in place on the date of Wayne’s fall.

     Grayzel filed a lawsuit against Palmonari on behalf of Wayne seeking compensatory money damages for his injuries based upon the negligent failure of the prime contractor to provide fall protection.  Palmonari’s insurance carrier hired an experienced personal injury defense lawyer to defend the claim.  A long hard battle was underway.  It would take over two years to get to trial.

     Grayzel obtained all of the prime contractor’s project records and took the video deposition of the defendant’s project manager.  Many hours of careful preparation paid off as Grayzel was able to establish in the video deposition with the project manager that Palmonari was in control of the job; that the contractor was required to design and implement fall protection and had not done what they were supposed to do on this project.  An expert in construction safety was hired who reviewed the facts and was able to point out that Palmonari did not comply with OSHA construction safety regulations and ANSI standards.

     The defendant took two positions:  that industry custom and OSHA standards did not require contractors to provide fall protection to ironworkers who were working at heights under 30 feet and that Wayne had caused his own accident by failing to transfer from the ladder to the steel carefully.  Wayne had a lengthy deposition taken by the defense and he was able to refute these allegations.  Wayne was very careful when he was getting onto the steel from the ladder.  The defense lawyer retained a “hired gun” to testify that OSHA standards did not require Palmonari to provide the ironworkers with fall protection.  Plaintiff’s expert had worked as an OSHA official for many years and was able to show that this position was erroneous.

     Palmonari’s insurance carrier took a hard position and refused to settle the case.  An eight-day trial took place in September of 2006 that was hard fought by both sides.  Grayzel tried the case against a team of two lawyers hired by the defense.  Grayzel argued that good safety practice was to provide fall protection to ironworkers at any height of fifteen feet or higher and proved that this was not done on the project.  The defense argued that fall protection did not have to be provided to Wayne because he fell from 29 feet, not 30 feet, and that he was at fault for the accident.  The witnesses at trial included Wayne, workers from the project, supervisors, expert witnesses and doctors.

     A jury found that the defendant was negligent and that plaintiff was not negligent.  The jury awarded over a million dollars in damages to the plaintiff.  After the verdict, the defendant appealed hoping that they could force plaintiff to accept less than the total amount of the damages or to obtain a new trial.   After several months, the defendant capitulated and agreed to pay the entire amount of the verdict.  The evidence against them was overwhelming.  The most important reason for the verdict was Wayne.  He was a hard working, earnest young man with serious injuries that impressed the jury with his honesty and sincerity.  It was very clear from Wayne’s testimony that he had not done anything wrong to cause his accident.

    The second most important reason was the hard work of Ron Grayzel.  He investigated early, gathered the facts and attacked hard to establish the truth.  He took the case to trial and fought hard for his client against a big insurance company and won.  He made a passionate argument for ironworker safety that the jury accepted.  Levinson Axelrod invested the financial resources it took to prevail and refused to give in even when the defendant took an appeal.

     Just as important is the precedent the case sets.  The jury found that fall protection for ironworkers is important and that a contractor that failed to accept responsibility for providing it is accountable for the injuries it causes.  Construction safety is important and when juries learn the truth, they will do the right thing.