Most people consider potholes an annoyance, but for many workers they can be s serious safety risk – a safety risk that can lead to a work injury and a workers’ compensation claim.
While potholes are generally thought about as a symptom of cold weather in northern states, potholes are an all-weather hazard for workers because of how they are created.
Potholes: weight and water
Weight put on asphalt by vehicles eventually causes pavement to break down and cause holes. Potholes are prevalent in areas high traffic and heavy vehicles. That’s why parking lots, truck stops and areas around warehouses and delivery docks can be particularly bumpy.
If you combine high traffic with heavy moisture and or freezing water, you have a recipe for slips, trips and falls for those who must walk on potholed surfaces.
Potholes: weight times speed
Potholes can also cause injuries to drivers who strike them. The faster and heavier the vehicle the greater the impact. This is particularly true for drivers of heavier vehicles like semi-trucks driving highway speeds. It is not uncommon for truckers to get lower back injuries from striking potholes
Remedies for pothole injuries: Workers’ compensation, personal injury and whistleblower claims
If you get hurt at work because of a pothole that should be covered by workers’ compensation. Even if a worker who works inside, they should be covered by workers’ compensation if they slip and fall on premises while working into work. It’s a closer legal call if the employee is walking from off-site parking or is walking outside during a break.
If you are a trucker who hit a pothole, be sure to tell your dispatcher or safety what happened. Also if you go to a doctor – particularly if it is in some random emergency room – be sure to mention hitting a pothole. Pothole injuries have a way of being ignored, so make sure you report them to help your case for workers’ compensation benefits.
If you are hurt on the job, but you fall due to a pothole on another businesses property, you could have a negligence claim against that business. The legal term for a case like this is a third-party claim. In a third-party claim, you can collect both workers’ compensation benefits and be paid by the at-fault party. But if another party is at fault for a work injury, your workers’ compensation insurer has some right to be paid back from the proceeds of the negligence claim.
OSHA requires employees provide a workplace free of recognizable hazards. OSHA has cited employers for employee injuries due to potholes. Nebraska allows employees to sue their employers for retaliation if they report conduct they believe to be unlawful under state or federal law. So in Nebraska, an employee who is retaliated against by their employer for reporting an injury due to a pothole could bring a statutory whistleblower claim against their employer as a well as a common law case.
An employee could also bring a federal whistleblower claim depending on their employer as well under a federal law like the Surface Transportation Amendments Acts (STAA) which covers workers’ in the transport industries.