You fell off scaffolding. You went to the hospital. And when the claim reached the Board, your employer said something you did not expect: he does not work here. He never did.
It happens most often to people paid in cash — day labor, construction helpers, small subcontractors, anyone whose work was arranged by phone and settled in an envelope on Friday. There is no pay stub, no sign-in sheet you kept, no email chain. And the one party who does have records is the party now saying you were never there.
That is a difficult claim. It is not a lost one.
The statute does not start you at zero
Workers’ Compensation Law § 21 sets out presumptions that apply in any proceeding to enforce a claim. In the absence of substantial evidence to the contrary, it is presumed, among other things:
- That the claim comes within the provisions of the chapter — § 21(1).
- That sufficient notice was given — § 21(2).
- That the contents of medical and surgical reports you put in evidence are prima facie evidence of the facts in them — § 21(5).
Read that last one again, because it is doing quiet work. The doctor’s report that records a fall from height at a job site on a particular date is not just background. It is evidence of what it says.
An employer who denies the whole employment relationship has to produce substantial evidence. Saying it firmly is not the same as proving it.
How this played out in a real case
In Matter of Smart Restoration Corp (WCB Case No. G332 9143), decided by the Full Board in 2025, a construction helper said he fell roughly ten feet while dismantling scaffolding at 176 Broadway in Manhattan on September 19, 2022. He said he was paid about $200 a day in cash, five days a week, and injured his neck, back, right shoulder, both knees and right ankle.
The company’s owner testified that the claimant was not working for him that day and had not worked for him in over two years. His account was that the claimant was simply meeting a supervisor at the site so the two of them could go to a restaurant for a beer and a soccer game.
This is a published decision of the Workers’ Compensation Board, not a case from this office. We are writing about it because it is public, recent, and it shows exactly how these disputes get decided.
What carried it
Three things, and none of them was a pay stub.
- Text messages. The day before the accident: tomorrow 8:00 am 176 Broadway. The morning of, at 8:43: a location link. That night at 9:02: I will call you until now I am here at the hospital. An ordinary phone, showing someone being told where to be and reporting back from an emergency room.
- Medical records. Multiple physicians documented injuries causally related to a fall on September 19 — cervical and lumbar sprains and the joint injuries he described.
- The records that never came. The Board directed production of job site sign-in logs, work credentials, identification and paychecks. Apart from the initial emergency room records, none of it materialized.
That third point is the one injured workers underestimate. You do not have the payroll records — but neither, it often turns out, does the employer who is telling the Board you were never on the payroll.
The claim was not clean, and it still succeeded
This is worth sitting with, because people talk themselves out of claims over far less.
It was his first day at that particular site. He could not identify any witnesses. He did not notify the employer immediately. He said he had not been paid for the 2022 work at all. The majority of a Board Panel found those problems fatal and disallowed the claim outright.
The dissenting Panel member took the opposite view — that the law judge who watched the witnesses testify was in the best position to judge credibility, that the employer’s witnesses were entirely incredible, and that the inconsistencies in the claimant’s testimony were not enough to justify reversing.
On Mandatory Full Board Review, the Full Board adopted the dissent and established the claim.
Losing at one stage is not losing
Follow the path that claim took:
- The law judge established the claim.
- A Board Panel majority reversed and disallowed it.
- Full Board Review reinstated it.
Between step two and step three sat a claimant holding a decision that said he had no case. The deadlines on that ladder are short and unforgiving — our page on what happens at your hearing sets out the appeal stages and the 30-day windows. A denial you do not appeal in time becomes permanent regardless of what the record would have shown.
If this is your situation, preserve this now
Before anything gets deleted, overwritten or lost with a phone:
- Every text and call log with whoever told you where to report and when. Screenshot them and email the screenshots to yourself so they exist somewhere other than the handset.
- The job site address, and any location pin someone sent you.
- Payment records — Venmo, Zelle, Cash App, bank deposits, or photographs of cash envelopes if that is what there is.
- The ambulance and emergency room records, which independently fix the date, the time and often the location and mechanism.
- Names, nicknames and phone numbers of anyone who was on that site, even if you do not know their last name.
- Photographs of the site, the equipment, your gear, your injuries — with the dates intact.
- Your own dated account, written now while it is fresh.
And tell the truth about the cash. Being paid off the books does not disqualify you from workers’ compensation, and neither does immigration status — more on that on our page for undocumented workers. What does damage a claim is a story that changes once the other side produces something.
What a decision like this does and does not mean
A Board decision is the Board applying the law to one record. It is not binding appellate precedent, and a different record produces a different result — the same Panel that reversed this claim would have been affirmed if the evidence had come out differently.
What it does show is what the fight is actually about: not whether you have paperwork, but whether the record as a whole makes your account more credible than theirs.
A related fight is the one over what you were called rather than whether you were there — see our page on being handed a 1099 instead of a W-2. Where more than one company is involved, see general and special employers.
Talk to a Staten Island workers’ comp attorney
If an employer is denying that you ever worked for them, the evidence that decides it is mostly sitting on your phone right now, and it does not stay there forever.
Call (718) 701-2776. The consultation costs nothing, and you will speak with me.
Nothing on this page is legal advice about your own claim. Whether an employment relationship existed on a particular day is a question of fact the Board decides on the evidence before it.