Delivery drivers, contractors driving between job sites, home health aides going from client to client, sales reps, bus and truck drivers: a lot of New Yorkers are on the road for work every day. When one of them is hurt in a car accident on the job, there can be three different sources of benefits: workers’ comp, no-fault insurance and a claim against the at-fault driver. They fit together in a specific order, and getting that order wrong can cost you money.
The short answer
- Workers’ comp comes first. If you were working when the crash happened, comp pays your medical bills and part of your lost wages.
- No-fault fills some of the gaps. It can pay the difference between your comp check and its own lost-wage benefit, plus certain other expenses. You still need to file a no-fault application within 30 days.
- A claim against the other driver can pay for pain and suffering and losses beyond what comp and no-fault cover, if your injury is serious enough under New York law.
- You usually cannot sue your own employer or a coworker who was driving.
- Call us first. We handle the comp claim, and if you have a case against the other driver, we put you in touch with a lawyer who handles car accident cases and coordinate the two.
Is a car accident at work covered by workers’ comp?
It is if you were doing your job when it happened. That generally includes:
- Driving a company vehicle or your own car for work
- Making deliveries or service calls
- Driving between job sites, clients or offices during the workday
- Running an errand for your employer
- Driving for a rideshare or black car company. See the Black Car Fund.
Your ordinary commute to and from work usually is not covered. There are exceptions, such as when you are driving a vehicle your employer provides, traveling to a temporary assignment, doing a special errand on the way, or when your job has no fixed workplace. The facts matter, so ask before you assume you are not covered.
How the three pieces fit together
| Workers’ comp | No-fault | Claim against the other driver | |
|---|---|---|---|
| Who pays | Your employer’s comp carrier | The no-fault insurer of the vehicle you were in | The at-fault driver’s liability insurance |
| Fault needed? | No | No | Yes |
| Medical bills | Yes, primary | Not if comp is paying them | Not usually; those are already covered |
| Lost wages | Two-thirds of your average weekly wage, up to the weekly maximum | The gap, if any, up to its own limits | Losses beyond what comp and no-fault pay |
| Pain and suffering | No | No | Yes, if the injury meets the “serious injury” threshold |
| Deadline | Notice within 30 days; claim within 2 years | Application within 30 days | Generally 3 years; 90 days for a notice of claim against a city or public agency |
Workers’ comp: first in line
When you are hurt in the course of your job, workers’ comp is the primary source of medical and wage benefits. It pays your treatment and two-thirds of your average weekly wage, up to the weekly maximum, while you are out, and it may pay a permanency award later. It does not matter who caused the crash.
No-fault: the gap filler
New York no-fault insurance pays lost earnings at 80 percent of your wages, up to $2,000 a month, along with other basic economic loss up to $50,000. When you are hurt on the job, whatever workers’ comp pays is subtracted from what no-fault owes. Because no-fault’s lost-wage benefit is often higher than your comp rate, no-fault may owe you the difference every month. It can also pay some expenses comp does not, within its limits.
To keep those benefits, you still have to file a no-fault application, usually within 30 days of the accident, even though comp is paying. Many injured workers skip it and lose the extra money.
The claim against the other driver
Comp and no-fault never pay for pain and suffering. If another driver caused the crash, you may be able to bring a claim against that driver for pain and suffering and for economic losses beyond what comp and no-fault cover. To recover for pain and suffering in a New York car accident case, your injury generally has to meet the “serious injury” threshold, such as a fracture or a significant limitation of use of a body part.
That claim is a personal injury case, separate from your comp claim. Call us first: we will handle your workers’ comp claim, and if you have a case against the other driver, we will put you in touch with a lawyer who handles car accident cases and coordinate the two.
Why the cases have to be coordinated
- The comp lien. In most third-party cases, the comp carrier gets repaid out of any recovery. In car accident cases that lien is more limited, because the carrier generally cannot take repayment from the part of your recovery for pain and suffering for benefits it paid in place of no-fault. Getting that right can mean real money stays with you. See third-party settlements and the comp lien.
- Consent to settle. Settling with the other driver without the comp carrier’s written consent, or a court order, can cut off your future comp benefits.
- Deadlines run on different clocks. Comp notice is due within 30 days, the no-fault application usually within 30 days, and a claim against a city bus, sanitation truck or other public vehicle may need a notice of claim within 90 days.
If a coworker was driving, or the other driver had no insurance
You generally cannot sue your employer or a coworker for a crash on the job; workers’ comp is your remedy against them. If the other driver was uninsured or fled the scene, you may still have an uninsured motorist claim, depending on the policies involved. These situations get complicated quickly, so call us before you sign anything or give a recorded statement to any insurance company.
What to do after a work car accident
- Call 911 and get a police report, and get medical care right away.
- Tell your employer in writing that you were hurt while working, within 30 days.
- File a no-fault application with the insurer of the vehicle you were in, usually within 30 days.
- Get the other driver’s name, insurance, plate number and the names of any witnesses. Take photos if you can.
- Don’t give a recorded statement to the other driver’s insurance company before you talk to a lawyer.
- Call us first. We will sort out which benefits you have and file what needs to be filed.
Frequently asked questions
Am I covered by workers’ comp if I get in a car accident while working?
Yes, if you were doing your job when it happened, such as driving for deliveries, between job sites or on an errand for your employer. Your ordinary commute usually is not covered, but there are exceptions.
Do I file for workers’ comp or no-fault after a work car accident?
Both. Workers’ comp is primary and pays your medical bills and part of your wages. You should still file a no-fault application, usually within 30 days, because no-fault may pay the difference between your comp check and its lost-wage benefit.
Can I sue the other driver if I’m getting workers’ comp?
Yes. Workers’ comp does not stop you from bringing a claim against an at-fault driver who is not your employer or coworker. To recover for pain and suffering, your injury generally has to meet New York’s “serious injury” threshold, and the comp carrier must consent to any settlement.
Can I sue my employer or a coworker for a car accident on the job?
Generally no. Workers’ comp is your remedy against your employer and coworkers. A claim can usually be brought only against a driver or company that is not your employer.
Does the comp carrier get paid back from my car accident settlement?
Sometimes, but in car accident cases its lien is more limited than in other third-party cases. It generally cannot be repaid from the pain and suffering part of your recovery for benefits it paid in place of no-fault. A lawyer should review the lien before you settle.
Talk to a New York workers’ compensation attorney
The Law Offices of Frank J. Dito, Jr. handles workers’ compensation claims from the office on Staten Island, for injured workers throughout the five boroughs and across New York State. If you were hurt in a car accident while working, call us first and we will tell you which claims you have.
Call 718.701.2776 or 800.310.5520. Consultations are free. If we don’t recover money for you, we don’t get paid.
