Hurt at Work in New York: Workers' Comp and Lawsuits

Most people injured on the job in New York know about workers' compensation. Fewer know that a second, separate claim may exist, and that it is often worth far more.

What workers' compensation covers

Workers' compensation is insurance your employer is required to carry. It pays for medical care related to the injury and replaces part of your lost wages, generally two-thirds of your average weekly wage up to a maximum set by law. It is paid regardless of who was at fault.

It does not pay for pain and suffering.

Why you usually cannot sue your employer

The trade-off for benefits without proof of fault is that workers' compensation is, with narrow exceptions, the exclusive remedy against your employer and your co-workers (Workers' Compensation Law §§ 11, 29(6)). You generally cannot bring a negligence lawsuit against either.

The third-party claim

The bar applies only to your employer and co-workers. If someone else's negligence caused or contributed to your injury, you can sue that person or company (Workers' Compensation Law § 29(1)). Common examples:

• Construction sites. The property owner and the general contractor are usually separate from your employer, and New York's Labor Law places special duties on them.
• Vehicle crashes. If you were driving for work and another driver hit you, you have a claim against that driver.
• Defective equipment. The manufacturer of a machine or tool that failed can be responsible.
• Other people's property. If you were injured by a dangerous condition while working at a location your employer does not own or control.

A third-party lawsuit can recover what workers' compensation does not: full lost earnings, future losses, and pain and suffering.

How the two claims fit together

You can pursue both at once. The workers' compensation carrier generally has a lien on the lawsuit recovery for benefits it has paid, and its consent is generally required before the lawsuit is settled. Handling that lien properly is an important part of the case, and mistakes can cost you future benefits.

Deadlines

• Tell your employer. Give written notice of the injury within 30 days (Workers' Compensation Law § 18).
• File the compensation claim with the Workers' Compensation Board within two years (Workers' Compensation Law § 28).
• The lawsuit against a third party is generally subject to the three-year deadline for negligence claims (CPLR 214(5)). If the third party is a public body, such as a city or a public authority that owns the site, a notice of claim is generally due within 90 days.

What to do after a workplace injury

1. Report the injury to a supervisor in writing, and keep a copy.
2. Get medical care and tell the provider the injury happened at work.
3. Write down who was there, what equipment was involved, and who owned or ran the site.
4. Photograph the scene and the equipment if you can do so safely.
5. Be careful about recorded statements to any insurance company other than your own.

If you were seriously injured at work, call the office to find out whether you have a claim beyond workers' compensation. For more, see Construction Accidents and Personal Injury.