Category: Worker’s Compensation

Compensation Liens, Construction Accidents, Worker's Compensation, Worker's Compensation Benefits

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 Accidents, Labor Law, Worker's Compensation, Worker's 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.

Worker's Compensation, Worker's Compensation Benefits

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.

Assault, Worker's Compensation, Worker's Compensation Benefits

Assaults at Work II

In a previous post, the issue of Compensation for assaults by a co-worker was addressed. The question was asked if an assault by a co-worker was covered by Worker’s Compensation. The answer was Compensation would cover a claim arising out of an assault that occurred on the job. A second issue that may arise in this case is the right of an employee to directly sue a co-employee for assault.

Generally, employees may sue not their co-worker’s for negligence. If your co-worker’s negligence causes you to sustain injuries on the job, then your exclusive remedy is Compensation benefits. However, if that co-worker punches you, then you can also sue that co-worker for assault.  Unlike Compensation claims, in a suit for assault, the injured employee can obtain an award for pain and suffering.

Sometimes, direct suits against co-workers do not work out. Sometimes, employees may not be able to identify the assailant.  Sometimes, law suits against co-workers result in judgments that can never be collected because the assailant is insolvent.

But the injured worker can still elect to sue the assailant and can have a judgment against that person in the event the assailant ever becomes solvent in the future.

Assault, Worker's Compensation, Worker's Compensation Benefits

Assaults at Work

“I was injured at my job when a recently hired co-worker lost control of himself and punched me. Do I have a claim against my employer for hiring someone unstable?”

The short answer is yes.  This type of incident would be covered by Worker’s Compensation. Your employer’s Compensation Carrier will cover your medical bills and pay you lost wages while you recover from your injuries. Depending on the type and severity of your injuries, you may be entitled to a settlement at the conclusion of your Compensation case.