Labor Law Scaffold Cases

I fell from a scaffolding when I was installing windows on a house. I injured my leg and will not be able to work for some time. Can I bring a claim for personal injuries?

The answer is probably yes. There may be some changes to this post depending upon the specific facts of your case. However what you described seems like you have a Labor Law case.

You should first apply for Worker’s Compensation benefits. Worker’s Compensation benefits will pay for your medical bills as well as pay you a portion of your salary while you are recuperating from your injuries.

You did not say if you fell at a commercial job site or you were doing repairs at a home. The Labor Law has an exception for one and two family dwellings. Generally homeowners who employ contractors to do improvements are not held to the same standard as commercial owners and general contractors. Thus, when you mentioned that you fell installing windows on a house, it was assumed that you were working on a job site installing windows on new construction. However, if a homeowner hired you to replace windows on an existing house, your case probably will not be covered under the labor law. But there would definitely be more questions such as if the homeowner directed the work, did he provide tools and material? If this were the case, then the homeowner might be liable under the Labor Law.

The type of case you described is covered under the Labor Law § 240. Owners and general contractors on job sites have a non-delegable duty to ensure the safety of workers. You did not specifically explain the reason that you fell from the scaffold. One issue might be the height of the scaffolding and whether the scaffolding had any safety railings on it. 

Since you were not specific about the reason for your fall, you will not get a complete answer in this post. However all cases involving falls from a height or objects falling from a height onto a worker are generally covered under Labor Law § 240. The worker can claim absolute liability against the owners and general contractors on the job site. (Absolute liability means that owners and general contractors are responsible for all the damages in a personal injury claim without any deduction for a worker’s negligence.) An injured worker can recover for personal injuries from the owner and general contarctor and obtain Worker’s Compensation benefits from his employer.

Worker’s Compensation Liens

I was hurt on a construction site accident about four years ago. My attorney has told me that I have to pay money back out of my settlement for a Worker’s Compensation lien. Do I have to pay money out of my settlement for benefits I already received?

The short answer is yes you do. The reason is because Worker’s Compensation § 29 says you must.

The insurance carrier for your Worker’s Compensation benefits has a right of subrogation. The Worker’s Compensation carrier has a claim against the responsible party to seek reimbursement for any medical and lost wage benefits paid by the insurance company in your Worker’s Compensation case. This right of subrogation is the same type of right your car insurance company would have if you filed a collision claim for damage caused to your car in an accident. In a collision claim, your car insurance company pays to fix your car. Then your insurance company has the right to pursue a subrogation claim against the at-fault driver for the money it paid to fix your car.

Worker’s Compensation Law § 29 creates a right of subrogation against the responsible party for your accident. Since you were involved on a construction site accident, I am assuming that your attorney brought a Labor Law case against the owner and general contractor on the job site in which you were injured. The Worker’s Compensation carrier has a lien for lost wage and medical benefits paid on your case. Under the statute, the Carrier must deduct from its lien your “procurement costs” to obtain that recovery. That means (since one-third of the recovery in personal injury cases is taken out as a legal fee) the Compensation Carrier will deduct at least one-third from the lien. So a $75,000 lien will be reduced to at least $50,000.

In addition to paying back the lien, the claimant must also obtain the Compensation Carrier’s consent to the settlement. (Failure to obtain Carrier consent can jeopardize future Compensation benefits.) The Compensation Carrier will also take a credit to the extent of the recovery. That means if the injured party receives $10,000 in recovery from a $15,000 settlement (two-thirds of the recovery less the legal fee deduction), the Carrier will not pay future medical or lost wage benefits until the sum of those potential benefits equals $10,000. After the injured party has submitted $10,000 worth of medical expenses and lost wage benefits, then the Compensation benefits may be paid again to the injured worker.

In fact, if the injured worker does not know about Labor Law cases or just decides he doesn’t want to sue, the Compensation Carrier has the right, under Worker’s Compensation § 29, to appoint an attorney to pursue the Labor Law case against the owner and general contractor on the job site. The injured party must cooperate with the appointed lawyer or risk losing Compensation benefits.

Construction Site Claims – Part 2

In the first part of this post, the injured party was an electrician who was shocked while working at a job site. The question was general one, so there were certain assumptions made in answering the first part of the question. Those assumptions were stated and the answers given were based on those assumptions. Similarly, there are assumptions made in this post, and those assumptions are stated and the response is made with those assumptions.

The first part of this post dealt with an electrician who was receiving no Worker’s Compensation benefits. The prior post suggested that the injured worker should make a Worker’s Compensation claim to obtain medical and lost wage benefits through the uninsured employer’s fund. The second claim the injured worker has is a lawsuit in Supreme Court against the job site owner and general contractor under the Labor Law.

There is an assumption that the job site was part of commercial building remodeling or new construction. If this accident occurred on a small repair of a one or two family home, none of the following information is applicable.

In this case, the injured worker can sue the general contractor and building owner for pain and suffering under Labor Law § 241(6). That particular statute places the burden for safety on a job site away from the injured worker’s employer to the general contractor and building owner. That means that the general contractor and building owner have  a “non-delegable” duty to maintain a safe worksite.

In order to maintain an action under Labor Law § 241(6), the injured party must plead and prove that the owner and/or general contractor violated a specific regulation promulgated by the New York State Department of Labor. There are thousands of such regulations. Unfortunately, only some of the regulations are deemed to outline specific duties. If the regulation in question outlines a general duty of safety, that regulation cannot be the basis for a Labor Law claim.

Over decades of caselaw in written decision from appellate authorities, the Courts have determined many regulations are specific enough to be the basis of a Labor Law claim. In this particular case, there are regulations that Courts have found to outline specific duties that when violated, form the basis of a claim under the Labor Law. Some the those regulations are found in 12 NYCRR 23-1.13. These regulations require general contrators, owners and employers to correctly label circuits and de-energize circuits when certain types of work are performed. 

This is not the end of the story. But this is the end of this post. There is no specific description of the accident. Depending upon what actually happened, there may be no case. The important lesson to this two part post is (1) obtain Worker’s Compensation benefits as quickly as possible to obtain medical treatment and lost wage benefits and (2) if possible, bring a claim for pain and suffering under the Labor Law in Supreme Court. There are many topics concerning Labor Law claims that will be covered in future posts.

Construction Site Claims Part 1

I was injured in a construction accident when I was electrically shocked at a job site. I was unable to work for more than six months, and have received nothing from my employer. Can I receive compensation for my injuries?

Yes. But you have asked a very complicated question which will be answered in two blogs.

You first have a Worker’s Compensation claim. Worker’s Compensation benefits provide medical care and lost wage benefits. It sounds like you are an electrician and were shocked doing some wiring. I am also assuming that you are not in a union. Local 3 electricians have extensive Worker’s Compensation protection. The union even has its own private venue for union electricians injured on the job. Since you are non-union electrician, your claim for Compensation benefits will be handled like all other Compensation claims.

Since it has been six months and you have received no Compensation benefits, I am assuming there is a problem with your employer on the job site. If your employer has Worker’s Compensation insurance, you should file a C-3 claim form with the Compensation Board. (There is a 30 day statute of limitations to notify your employer about a Compensation claim. There is a two year statute of limitations to file with the Compensation Board.) Once you file a C-3 claim form with the Compensation Board, your case will be indexed and the carrier will be notified. It is even possible for you to look up your employer’s insurance carrier by yourself through the Compensation Board.

If your employer has no Compensation insurance, you have a choice of remedies: (1) you can sue your employer in Supreme Court for your injuries or (2) pursue a claim in the Compensation Board with the uninsured employer’s fund.

If you elect to sue your employer in Supreme Court you get two benefits. First, you can sue your employer for your pain and suffering besides being reimbursed for lost wages and medical bills. Second, you will have the benefit of having to only prove the slightest negligence on your employer’s part, because under Worker’s Compensation Law § 11, your employer may not offer any evidence of the employee’s negligence in the accident. However, this may not be the wisest decision.

I am assuming that you have been having trouble contacting your employer and obtaining any information since you are without any benefits for six months. Unfortunately, as experience has taught, you will probably learn that your former employer is out of business and has closed the entity that hired you. In other words, there probably will be no assets to attach to a judgment. You would win your lawsuit, but collect no money. In these circumstances, your wisest course of action would be to pursue a Workers’s Compensation claim with the uninsured employer’s fund.

However, once you pursue a Worker’s Compensation claim, you cannot sue your employer for pain and suffering. Worker’s Compensation Law § 29. But since your former employer is probably insolvent, you are actually giving up nothing and gaining medical coverage and lost wage benefits.

If you choose the second option, you will probably have a claim for your pain and suffering under New York Labor Law which will be covered in part 2 of this already long post.

Starting A Compensation Claim

I was injured doing remodeling at a construction for an employer that hired me a week before my accident. Can I collect Worker’s Compensation?

Yes. It does not matter how long you have been working on a job, you can always make a Worker’s Compensation claim. Construction workers are notorious for having many employers over their work life. Union members obtain employment through their union. Non-union construction workers typically get hired by contractors that have contracts for specific work. Typically, when the job is completed, construction workers move onto to new employers or are laid off until they find more construction work.

In order to start a Compensation claim, you must notify your employer of your accident and injuries within 30 days of your accident. Second, you need to notify the Compensation Board within two years of your accident. Most injured workers notify their employers immediately after their accident. The second notification to the Compensation Board can be submitted online or you can download a packet from the Compensation Board. Many people hire a Compensation lawyer or representative to help them complete the paperwork.

Compensation benefits are paid by the employer’s Compensation carrier as soon as your doctor submits a disability report and you submit your intial report of incident. Employers have the right to contest Compensation claims, but if you were injured while doing construction work at the job site during working hours, you will be successful with your claim. Medical and travel expenses (to and from the doctor) are also covered by Compensation.