Staten Island is always building. New homes go up on the South Shore, older houses get gutted and renovated, and crews work on roads, sewers and utilities across the borough. When a roofer, laborer, carpenter, electrician or ironworker is hurt on one of these jobs, there may be two different cases: a workers’ comp claim and a construction accident lawsuit. Knowing the difference, and keeping the two coordinated, can make a big difference in what you recover.
The short answer
- Workers’ comp covers almost every construction worker hurt on the job, no matter who was at fault. It pays your medical treatment and part of your lost wages, and it may pay an award for permanent injury.
- A Labor Law lawsuit may also be available if you fell from a height, were hit by a falling object, or were hurt because the site broke the state’s construction safety rules. That case is brought against the property owner and the general contractor, not your own employer.
- You can have both at once. The comp claim pays while you are out. The lawsuit can pay for things comp never covers.
Workers’ comp: the claim against your employer
Workers’ comp is no-fault insurance. If you were hurt on the job, you are generally covered even if the accident was your own mistake. Comp pays:
- All causally related medical treatment, including surgery, physical therapy and prescriptions
- Two-thirds of your average weekly wage while you are out, up to a weekly maximum
- A schedule loss of use award if you are left with permanent damage to an arm, leg, hand, foot, eye or hearing
- Death benefits to your family if a worker is killed on the job
The trade-off is that comp is generally your only remedy against your own employer. You usually cannot sue the company that hired you. Comp also does not pay for pain and suffering, and it does not replace your full wages.
A Labor Law lawsuit: the claim against the owner and general contractor
New York’s Labor Law puts strict safety duties on property owners and general contractors, who are usually not your employer. That opens the door to a personal injury lawsuit against them.
- Section 240(1), the Scaffold Law, covers falls from ladders, scaffolds, roofs and other heights, and being struck by falling objects or loads that were not properly secured. Owners and contractors can be held responsible even if they were not directly at fault.
- Section 241(6) covers injuries caused by a violation of a specific rule in the state’s Industrial Code, such as slipping on an icy walkway or tripping over debris that should have been cleared.
- Section 200 covers general unsafe conditions on a work site.
A lawsuit can recover what comp does not, including pain and suffering and your full lost earnings. Only some accidents qualify, and these are complex cases.
Comp vs. a lawsuit at a glance
- Who pays: comp is paid by your employer’s insurance. A Labor Law case is against the owner, general contractor or another company on the site.
- Fault: comp does not care who was at fault. A lawsuit depends on what happened and which law applies.
- What it pays: comp pays medical bills, part of your wages and permanency awards. A lawsuit can pay pain and suffering and full lost earnings.
- Where it is decided: comp is decided by the Workers’ Compensation Board. A lawsuit is in court, usually State Supreme Court.
How the two cases work together
The two cases have to be coordinated, and mistakes can be costly.
- The comp lien. If you recover money in the lawsuit, the comp carrier generally has a lien for the benefits it paid and gets a credit against future benefits.
- Consent to settle. Settling the lawsuit without the comp carrier’s written consent, or a court order, can cut off your future comp benefits.
- Different deadlines. For comp, report the injury to your employer within 30 days and file your claim within two years. A Labor Law lawsuit generally must be filed within three years. If the site is city or public property, such as a school or public housing project, a notice of claim may be due within 90 days.
What to do after a construction accident on Staten Island
- Report the injury to your foreman or supervisor right away, in writing if you can, and within 30 days at the latest.
- Get medical treatment and tell the doctor exactly how it happened, including any fall, ladder, scaffold or falling object.
- Write down names: your employer from your pay stub, the general contractor, the property owner or address, and any witnesses.
- Take photos of the site, the equipment and your injuries if you can.
- Don’t give a recorded statement to the owner’s or contractor’s insurance company before you talk to a lawyer.
- Call us first. We will tell you whether you have a comp claim, a lawsuit or both.
Which lawyer you need
We handle workers’ comp. If you also have a Labor Law case, call us first anyway: we will handle your comp claim, put you in touch with a lawyer who handles construction accident lawsuits, and coordinate the two so your comp benefits are protected. Read more about workers’ comp for construction workers, and see our analysis of Staten Island workplace injury claims.
Frequently asked questions
Can I get workers’ comp and sue for a construction accident?
Yes. Comp pays while you are out no matter who was at fault. If you fell from a height, were hit by a falling object or were hurt by a safety violation, you may also be able to sue the property owner or general contractor. The comp carrier will have a lien on any lawsuit recovery.
Can I sue my employer for a construction accident in New York?
Usually not. Workers’ comp is generally your only remedy against your own employer. A lawsuit is usually brought against the owner, general contractor or another company on the site.
What is the Scaffold Law?
Labor Law Section 240(1), often called the Scaffold Law, makes owners and contractors responsible for many falls from height and falling-object injuries on construction sites when proper safety devices were not provided.
Does my comp claim affect my construction accident lawsuit?
Yes. The comp carrier has a lien on the lawsuit recovery, and settling the lawsuit without the carrier’s consent can cut off future comp benefits. The two cases need to be coordinated.
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 on a construction site, call us first and we will tell you which cases 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.
