Workers' Compensation

Battling the system

Lawsuit: The widow of a man killed in a construction accident wants more for her family than the process allows, but the state's employer-immunity law is a barrier.

April 23, 2004|By Stephanie Hanes | Stephanie Hanes,SUN STAFF

When Sara Villalobos told her husband she was scared that he could be hurt in a construction accident, he said she shouldn't worry.

He was safe, she recalled him saying. He made his crew use protective gear. He wore his helmet.

But when a supporting leg of a concrete pumping truck gave way at a Montgomery County work site one winter day last year, its swinging steel boom broke that helmet into three pieces. For weeks, Jorge Villalobos clung to life in Maryland Shock Trauma Center. When doctors told Sara he was brain dead, she agreed to let him go.

Now, Villalobos' widow is trying to do what most victims of workplace accidents cannot. She wants the Baltimore County company that she says caused Jorge's death to be held responsible in court.

Dozens of workers die each year on the job in Maryland, and hundreds are badly injured, according to the state's division of labor and industry. But in most cases, these workers cannot sue.

Instead, their claims are limited to the workers' compensation process, which guarantees workers some benefits but gives employers immunity from nearly all employee lawsuits.

For the most severely injured, and for the families of those who die at work, this system falls short, labor lawyers say.

Under workers' compensation, people such as Sara Villalobos and her two young sons could probably collect at most $60,000 for Jorge's death. Some state legislators have tried to modify that law.

"Workers' comp tends to do better with people who don't have serious injuries," said Mark Grasso, a workers' compensation lawyer. "I think the whole system is a headache. How do you really compensate for somebody who's dead?"

Although there are lawyers and insurance experts dedicated to finding ways around the employer immunity law - often by suing a third party instead of the worker's employer - they often face an uphill battle.

Even determining who, at any given time, is a worker's legal employer can be complicated. If one subcontractor is giving another orders at a work site, for instance, the first might be considered the employer, labor lawyers say.

For Sara Villalobos' lawsuit to proceed, she must show not only that General Concrete Pumping Service Inc. is responsible for her husband's death - something the company denies - but also that it was not his de facto employer that day.

Only then would the 33-year-old widow get her day in court.

Sara and Jorge Villalobos came to the United States from El Salvador as teen-agers. Both ended up in Montgomery County.

When they met, Jorge was living with Sara's brother, going to Blair High School and working construction. Sara had been living in Houston with her grandmother and had come to Maryland to visit her relatives.

"He was nice, he was cute, he had the most beautiful green eyes," she recalled recently. "I met Jorge, I didn't want to go back home."

She didn't.

She was 16. He was 18. He was her first love.

"My only," she said.

Not long after they graduated from high school, Sara and Jorge - the baby-faced girl with long, wavy hair and the solid-jawed boy with collar-length curls - married. They had children, Jorge Jr. and Nathan, and bought a townhouse in Takoma Park. The family vacationed in Las Vegas and Disney World.

Throughout those years, Jorge worked for Formed Walls, a company that specializes in building molds for and pouring concrete foundations. He made $84,000 a year.

Sara was cooking when the phone rang Jan 8, 2003. She answered, listened and started to shake. She vomited.

For 44 days, Sara sat by Jorge at Shock Trauma. She quit her job as a medical assistant. Every night, she called the hospital from home.

"I was worried he was going to go and I wasn't going to be there," she said.

On day 38, he opened his eyes. She asked him in Spanish whether he wanted to see the kids, and he nodded. When Nathan and Jorge Jr. came into the room, tears rolled down their father's cheek.

"I think he knew," Sara said.

On day 44, Sara saw blood in her husband's mouth, heard the heart rate monitor slow.

As the nurses and doctors rushed in, she fainted.

"This company, they don't know what me and my kids are going through," she said, clenching her eyes shut to slow the tears. "What we're still going through. I don't even know what to do with my life."

Maryland's workers' compensation system spells out how much money employees get for various injuries. A complete injury to the big toe, for instance, merits up to $102.50 per week for 40 weeks. Those with the most serious injuries collect up to $740 a week.

In theory, spouses of workers killed on the job can receive that amount indefinitely, up to about $38,500 a year. But if they get a job or some other form of income, they can collect no more than $60,000 total.

"The system isn't designed to compensate people for pain and suffering or the effect of a death on a loved one," said Benjamin Boscolo, an attorney who chairs the state bar association's council on negligence insurance and workers compensation. "It really has to deal with wages."

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