Q: I was injured at work by the skid steer operate with a faulty lever that was not fixed by the employer.
I was told to clean the excess dirt off of a bucket from a skid steer and the operator maybe through negligence closed the claws on me crushing me resulting in trauma to left shoulder and chest. The machine that caused the accident has had a bad lever (responsible for closing and opening the claws on the machine) since before May, I do not know how far back it was bad for. My employer had stated back in May that the lever was bad and that he was going to change it but never did. As I was getting carried away in the gurney, the current operator said to my employers father that the claws closed down by themselves. My employer is married to my cousin and I have heard, although not from my employer or cousin, that they might not want to pay the medical bills because I work in construction and that I am technically not their employee but rather an independent contractor. Because I get a 1099 form I am not sure if this is true. Do I have a legal right to sue for my medical expenses?
A:
Receiving a Form 1099 instead of a Form W-2 is evidence that you were an independent contractor and not an employee, but in and of itself, it is not dispositive. Some companies misclassify employees as independent contractors to try to avoid having to withhold federal income tax and payroll taxes and to avoid having to pay the employer's matching share of payroll taxes. The real test is whether someone else controlled the manner, means, methods, and details of your work. If so, you were most likely an employee, not an independent contractor.
If you were an employee, your employer's workers' compensation insurance should cover your medical expenses and lost time off work. But you would be limited by the Workers' Compensation Act as to what you can recover for your workplace injury. If your employer did not carry workers' compensation insurance, you can sue your employer as a non-subscriber, which limits what defenses your employer can raise.
If you were an independent contractor, you are not limited to workers' compensation and can sue your hirer and the person who was operating the machine for negligence in failing to properly maintain the skid steer and in improperly operating the skid steer.
You should look for a personal injury attorney in or near the county where the injury occurred who handles "workplace injuries" or "workplace accidents." Not all personal injury attorneys handle this type of case, but many do. The particular nuances discussed above will be very familiar to those who do, whereas PI attorneys who primarily handle car wrecks might not be familiar with them.
Tim Akpinar agrees with this answer
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