Workers’ Compensation Claims

Clarifying Your Claim

People who are injured on the job have many different things they must think about. Knowing whether you have a workers’ compensation claim, a personal injury claim or both can be one of the most important factors to determine. For construction accidents, this can be very difficult. The personal injury lawyers at Caesar & Napoli, represent people who have been injured in construction accidents in the workplace throughout Brooklyn, Queens and Manhattan. We are a well-established construction accident firm that is committed to helping our clients achieve justice.

Working With Experts, Drawing On Experience

It is important to talk to a lawyer who has significant experience handling third-party claims and understands how to approach a case that involves a workplace injury. Caesar & Napoli, has a network of medical experts, engineers and other experts who can help with your case. We thoroughly investigate the cause of the accident, and are determined to help you get the benefits and compensation you deserve.

Injuries In The Workplace

Our New York workplace injury attorneys have represented people who have suffered all types of injuries, including:

• Broken bones and fractures
• Burn injuries
• Loss of a limb
• Back injuries
• Spinal cord injuries
• Traumatic brain injuries

For decades, the construction accident attorneys at Caesar & Napoli, have been helping victims who have been injured on the job. We understand the complexities involved in construction accidents, including how to successfully handle third-party claims. We have in-depth knowledge of New York construction law and have successfully handled some of the most complicated injury claims in the state.

What Workers’ Compensation Covers, and What It Does Not

Workers’ compensation in New York pays for medical treatment and a portion of lost wages, and it pays without anyone having to prove fault. That is the trade. In exchange, an injured worker generally cannot sue the employer, and the benefits do not include anything for pain and suffering or for the loss of the life the injury took away.

For a minor injury that is a reasonable bargain. For a serious one it is not nearly enough, and that gap is the reason the second question matters more than the first.

The Question That Changes the Outcome

The question is not only whether there is a compensation claim. It is whether anyone other than the employer contributed to the injury. If someone did, a separate lawsuit can run alongside the compensation claim, and that lawsuit is not limited in the way compensation is.

• A general contractor or a site owner on a construction project
• A subcontractor from another trade working in the same space
• The manufacturer of a machine that lacked a guard or failed in use
• The driver of a vehicle, where the injury happened on the road during work
• The owner of a property where a worker was sent, when the premises themselves were unsafe

New York construction work carries its own rules on top of this. Where a worker falls from height, or is struck by an object falling from height, the Labor Law places the duty to provide proper protection on the owner and the general contractor, and ordinary comparative fault does not cut the recovery the way it would in a standard negligence case. There are limits. It does not apply where the worker’s own conduct was the sole cause of the accident, and owners of one and two family homes who do not direct or control the work are outside it. Other provisions cover specific site hazards and the general condition of the workplace.

Notices and Deadlines

• Tell the employer in writing. New York requires written notice within thirty days of the accident. Verbal notice to a foreman is what most people give, and it is a common reason a claim is later disputed.
• File the claim. A claim with the Workers’ Compensation Board is generally due within two years of the accident, or within two years of learning that an illness is work related.
• The third party lawsuit. Three years from the date of the accident in most cases, and as little as ninety days to serve a notice of claim where a city agency or public authority is involved.

These clocks run at the same time and independently of each other. Filing with the Board does not preserve the lawsuit, and starting a lawsuit does not preserve the benefits.

One Step Worth Getting Right

Where a worker has both a compensation claim and a third party lawsuit, the compensation insurer has a financial interest in the lawsuit and a right to be repaid out of it. New York generally requires the insurer’s written consent, or a court order, before that case is settled. Settling without either can put the compensation benefits at risk, including future medical coverage. A court order can sometimes be obtained after the fact, but the window for that is short. It is the main reason the two claims belong in the same hands rather than being run separately.

Common Questions

Can I sue my employer?

In most cases no, because workers’ compensation is the exclusive remedy against an employer. That is why the first thing to establish is whether anyone other than the employer contributed to the injury. On a construction site there are usually several parties involved, and whether any of them bears responsibility depends on how the accident happened.

Can I be fired for filing a claim?

New York prohibits an employer from firing or otherwise penalizing a worker for claiming compensation or testifying in a proceeding. If it happens, there is a complaint process for it, and the retaliation is a separate matter from the injury claim itself.

I was paid in cash, or I do not have work authorization. Am I still covered?

Immigration status does not affect the right to workers’ compensation or the right to bring an injury claim in New York, and an employer paying off the books does not remove that protection either. Two practical points follow. Being paid in cash can make the employment relationship itself a point of dispute, because insurers sometimes argue the worker was an independent contractor, and that is an argument to answer rather than a bar. Separately, where a worker obtained the job by presenting false documents, New York courts have limited the recovery of lost United States earnings, although the rest of the claim remains. Our page on injury claims for undocumented workers in New York covers this in detail.

What if my claim was denied?

A denial is a position taken by the insurer, not a final answer. Denials commonly rest on late notice, a dispute about whether the injury arose from the work, a pre-existing condition, or a claim that the worker was an independent contractor. Each of those is contestable, and there are hearings for exactly that purpose.

What if the injury was permanent?

Then the numbers change completely, and the third party claim carries most of the weight, because compensation alone will not cover a lifetime. The pages on spinal cord injuries, traumatic brain injuries, paralysis and catastrophic injuries set out how those claims are built.

What should I do first?

Report it in writing, get medical attention and say clearly that the injury happened at work, photograph the scene and the equipment before anything is moved or repaired, and write down the names of everyone who saw it. Then get advice before the insurer takes a recorded statement. Our workplace injuries overview covers the wider set of claims.

Contact Us

At Caesar & Napoli, we do not charge for initial consultations. To schedule a meeting with one of our attorneys to discuss your injury case, please contact us at (888) 235-6766 . Most personal injury cases are handled on a no-win, no-fee basis. We are not paid attorney’s fees unless we win a recovery for your case.