I am a painter. I fell while I was on a ladder painting an office. What claims do I have?
Worker’s Compensation Claim
I assume that you already have sought medical attention for your injuries. In the hospital, a doctor asks a patient the history of how the person received their injuries. As soon as you told the doctor that you were injured on the job while painting, this told the hospital that you had a Worker’s Compensation claim. The hospital will look to bill your employer’s compensation carrier. Once you tell the hospital the name of your employer during your intake, the hospital can easily look up the compensation carrier for an employer through the Worker’s Compensation website. Therefore, your employer’s compensation carrier probably already has notice of the accident.
Nevertheless, you should notify your employer within 30 days of the accident. You will also have two years to file with the Worker’s Compensation Board. Most employers will routinely cooperate and notify the compensation carrier of the claim. However, if your employer does not have a compensation carrier, as explained in a prior post, then you can make a claim through the Uninsured Employer’s Fund to pay for medical expenses and part of your lost wage claim.
Labor Law Protects Painters
New York Labor Law protects painters. Section 240 of the Labor Law states in part “All contractors and owners and their agents . . . who contract for but do not direct or control the work, in the erection, demolition, repairing, altering, painting, cleaning or pointing of a building or structure shall furnish or erect, or cause to be furnished or erected for the performance of such labor, scaffolding, hoists, stays, ladders . . . which shall be so constructed, placed and operated as to give proper protection to a person so employed.”
As mentioned in prior posts, this section of the Labor Law holds owners of buildings and general contractors responsible for providing safety equipment to laborers working in these specific trades.
As it turns out under the Labor Law “painting” is actually a broad term. “Painting” includes painting the outside of a dwelling, Rivers v Sauter, 26 NY2d 260, 309 NYS2d 897, 258 NE2d 191 (1970), as well aspainting a swimming pool, Cahill v Westchester Towers Owners Corp., 295 AD2d 550, 745 NYS2d 38 (2d Dept 2002), and applying liquid containing aluminum pigment to a roof, Cummings v Vargo, 63 AD3d1718, 881 NYS2d 747 (4th Dept 2009); Artoglou v Gene Scappy RealtyCorp., 57 AD3d 460, 869 NYS2d 172 (2d Dept 2008).
Even scraping old paint in preparation for painting is protected by Labor Law § 240(1). De Oliveira v Little John’s Moving, Inc., 289 AD2d 108, 734 NYS2d 165 (1st Dept 2001).
You do not have to prove the painting was part of an overall construction or renovation project. Labor Law § 240(1) still applies to protect painters. Artoglou v Gene Scappy RealtyCorp., 57 AD3d 460, 869 NYS2d 172 (2d Dept 2008); Loreto v 376 St. Johns Condominium, Inc., 15 AD3d 454, 790 NYS2d 190 (2d Dept 2005).
Other Incidental Activities Not Covered by Labor Law
Wallpapering that is not performed incidental to any other enumerated activity in Labor Law § 240(1) does not constitute either “painting” or “alteration” under the statute, La Fontaine v Albany Management Inc., 257 AD2d 319, 691 NYS2d 640 (3d Dept 1999).
Filling in holes in walls with plaster or joint compound could be covered by the Labor Law. But only if that work is done in preparation for painting. However, such work could also be considered routine maintenance. Thus, not covered by the Labor Law. Each particular case will depend upon the facts. Ortega v 669 Meeker Avenue, LLC, 191 AD3d 686, 140 NYS3d 271 (2d Dept. 2021).
In your case, you can sue the building owner and contractor for personal injuries. Thus you should make a claim for your personal injuries in addition to your Compensation case.
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.