I fell from a scaffold while cleaning an air compressor mounted on the roof of a building. What are my options for getting my bills covered while I recover from my injuries?
Worker’s Compensation Claim
The first claim you should make is for Workers Compensation Benefits. You have 30 days from the date of your accident to notify your employer about your accident. The employer should notify the compensation carrier. The compensation carrier will cover your medical expenses and a portion of your lost wages while you are recovering from your injuries.
Personal Injury Claim
Worker’s Compensation will cover your medical expenses and a portion of your lost wages. The benefit to you as a recipient of Worker’s Compensation is that you do not have to go to court and wait years for a settlement. However, Worker’s Compensation will not pay you for your pain and suffering. Only a case in Supreme Court can compensate you for your personal injuries.
Labor Law Claim
Labor Law § 240 not only covers workers in construction accidents, it also covers workers involved with cleaning. Furthermore, cleaning (as that term is used in Labor Law § 240) is not limited to cleaning incidental to construction, demolition or repair work. Importantly, any commercial cleaning involving an elevation-related risk is within the scope of Labor Law § 240 See Soto v J. Crew Inc., 21 NY3d 562, 976 NYS2d 421 (2013). See also Dahar v Holland Ladder & Mfg. Co., 18 NY3d 521, 941 NYS2d 31 (2012).
Typically, Labor Law § 240 covers window washers in commercial buildings. However, other cleaning activities are also covered by the Labor Law. There are detailed legal tests to determine if a cleaning action is covered by Labor Law § 240. But the type of activity you described on a scaffold, cleaning an air compressor, would be covered. (Power washing HVAC chillers was a cleaning under Labor Law § 240, where it did not reoccur on a regular schedule as part of the ordinary cleaning of the premises. Moreover, the cleaning involved elevation risks not comparable to those encountered in domestic cleaning. It also required specialized equipment.) See Mazzarisi v New York Society for Relief, Maintaining Hospital for Special Surgery, 205 AD3d 424, 167 NYS3d 87 (1st Dept 2022).
Window Washer Statute
In addition to Labor Law § 240 , Labor Law § 202 could also cover your case. For example, a prior blog mentioned Labor Law § 202 covering window washers in commercial buildings. An injured worker can bring a case under both Labor Law § 240 and § 202. See Bauer v Female Academy of Sacred Heart, 97 NY2d 445, 741 NYS2d 491, 767 NE2d 1136 (2002).
But there are benefits to bring a claim under Labor Law § 240. Although, Labor Law § 202 does cover periodic cleaning of windows at residences (albeit not at multiple residences less than six stories in height or non-public buildings), Labor Law § 240 makes the building owner absolutely liable. In contrast, the plaintiff in a Labor Law § 202 case would be responsible for any comparative fault.
In your case, Labor Law § 240 would protect the type of cleaning you were doing at the time of your accident. Thus you would have a personal injury claim as well as a Worker’s Compensation claim.
By James Santner, Esq.
If you have questions about a similar situation, feel free to contact us. Consultations are free and there is no fee unless we win.