Can I Still Sue If I Get Workers’ Comp? NY Third-Party Claims

Workers’ Compensation: Strengths and Limitations

Workers’ compensation is a no-fault system, meaning you do not have to prove that anyone did anything wrong before collecting compensation. Under Workers’ Compensation Law, lost wage benefits are calculated at two-thirds of your average weekly wage, multiplied by your percentage of disability, and capped at a maximum weekly rate. Your employer is required to carry workers compensation insurance.

However, workers’ compensation pays nothing for costs that fall beyond this range. Claims including pain and suffering, disfigurement or changes in lifestyle will not be fully compensated under workers comp benefits. Workers comp also does not compensate your spouse for the loss of your companionship and services. Finally, the weekly cap will not cover the actual wage loss for a worker who earned above the state average.

Can I sue my employer if I got hurt on the job?

State law provides a framework that restricts suing your employer (or a coworker who caused the accident) are generally off limits. This rule also includes companies that are not on your paycheck, as in the case of a staffing agency arrangement or contractor status. While this does not always bar this avenue of compensation, it does underscore the importance of a legal evaluation.

Who You Can Sue: Potential Third-Party Defendants in a Workplace Injury Claim

Common third-party defendants in New York work injury cases include:

• Property owners and general contractors on a job site where your employer was a subcontractor;
• Other subcontractors and their employees, who are not your coworkers in the eyes of the law;
• Negligent drivers who hit you while you were working;
• Manufacturers of defective machinery, tools, or safety equipment, through a product liability claim;
• Building owners and managers whose poorly maintained premises caused a slip and fall; and/or
• Equipment lessors, maintenance companies, and delivery contractors who created the hazard.

If a fatality occurred, the family may pursue a wrongful death action against the same third parties, in addition to death benefits under the compensation system.

Third-Party Lawsuit Deadlines

• Notice of injury to your employer. Within thirty (30) days after the accident
• Filing the compensation claim. Within two (2) years of the accident, or of death
• The third-party lawsuit. Generally three (3) years from the date of the accident, subject to the earlier internal deadlines
• Wrongful death. Two (2) years from the date of death
• Claims involving a municipality or public authority. A notice of claim within ninety (90) days after the claim. Public works projects and municipal vehicles fall in this category, and the ninety day clock is the one most often missed.

How New York Protects Construction Workers After Accidents

For construction accident injuries, the third-party claim is often far more valuable than the compensation case, because New York imposes duties on owners and contractors that go well beyond ordinary negligence. Specifically:

• New York’s Scaffold Law requires that contractors and property owners furnish “scaffolding, hoists, stays, ladders, slings, hangers, blocks, pulleys, braces, irons, ropes, and other devices which shall be so constructed, placed and operated as to give proper protection.” It applies to elevation-related risks, which makes it central to scaffold accidents, ladder falls, and falling object cases.
• A related statute on construction, excavation and demolition work requires that construction, excavation, and demolition areas be “constructed, shored, equipped, guarded, arranged, operated and conducted as to provide reasonable and adequate protection and safety to the persons employed therein,” and permits a claim built on violation of a specific provision of the Industrial Code.
• Finally, Labor Law § 200 codifies the general duty to provide a safe place to work, and applies where the owner or contractor had authority to supervise or control the activity that caused the injury.

Driving for Work? Understand Your Legal Options

A worker injured in a vehicle on the clock has a third-party claim against the at-fault driver, whether the crash involved a company vehicle, a commercial truck, or a passenger car. Speak with an attorney as soon as possible if you suffered an injury while driving professionally, particularly if your injury may include a traumatic brain injury or other type of issue that does not appear on imaging. Our workplace accident attorneys are here to help.

Talk To a White Plains Work Injury Lawyer

Martin+Colin, P.C. has represented injured workers throughout Westchester County, New York City, and the Hudson Valley for decades. We handle both sides of the problem: securing the compensation benefits that pay the bills while the case is pending, and building the third-party negligence action that compensates the losses compensation was never designed to cover. Our recoveries include a $2,200,000 settlement for a worker crushed by falling metal plates and a $1,200,000 settlement for a concrete pump operator struck by swinging equipment.

Preguntas Más Frecuentes

Will filing a lawsuit end my workers’ compensation benefits?

No. Workers’ Compensation Law § 29 is built on the assumption that a worker may take compensation and sue a third party at the same time. Benefits continue while the lawsuit proceeds. What can end benefits is settling the lawsuit without the carrier’s written consent or a court order approving it.

Can I sue my employer if the accident was clearly their fault?

Generally no. Section 11 makes compensation the exclusive remedy against your employer, and § 29(6) extends that to coworkers, regardless of how careless the conduct was. The exceptions belong to the third-party defendant rather than to you. An owner or contractor you sue may seek contribution or indemnification from your employer where you suffered a grave injury as defined in § 11, or where your employer signed a written indemnification agreement before the accident.

How much of my settlement will the compensation carrier take?

Less than the gross amount of benefits it paid. The lien under § 29(1) applies after deduction of reasonable and necessary litigation expenses including attorney’s fees, and under Kelly v. State Insurance Fund the carrier bears an equitable share of the cost of the recovery. In motor vehicle cases, § 29(1-a) further limits the lien. The actual number is often negotiable, and negotiating it is part of the work of resolving the case.

What if the negligent party was an employee of a different contractor on the same site?

Then that person is not your coworker for purposes of § 29(6), and both that worker and their employer may be sued. This is one of the most common third-party scenarios on multi-employer construction sites.

I am an undocumented worker. Can I still bring a third-party claim?

Yes. Federal immigration law does not bar an undocumented worker from recovering lost wages under Labor Law §§ 200, 240(1) and 241(6), absent proof that the worker tendered false work authorization documents to obtain the job. A jury may consider immigration status as one factor in assessing damages. Immigration status does not eliminate an owner’s or contractor’s duty to provide a safe worksite, and our firm has obtained substantial recoveries for undocumented construction workers.

Do I need a different lawyer for the compensation claim and the lawsuit?

Not necessarily, and there is real value in coordination. Decisions made in the compensation case, including how disability is classified and what the medical record says about causation, directly affect the third-party case and the size of the lien. Handling both together avoids working at cross purposes.