As a Syracuse New York personal injury lawyer, I have received countless calls from Syracuse and Central New York workers injured at work who want to know, “do I have a case”?
When a worker calls and says they were injured on the job, here are, pretty much in order, the questions I ask them so I can figure out if they have a valid New York personal injury case: (1) Did you get, or are you getting, Workers’ Compensation benefits? If the answer is yes, my next question is, (2) Were you injured because of something that a co-employee or your employer did wrong or is someone else to blame? If the at-fault person was a co-employee or the employer, the conversation usually doesn’t go on much longer because the caller generally has no case. But if the caller says the accident was caused by someone other than the employer or a co-worker — hey, now we have something to talk about.
Why does it matter whose fault it was? Because you can’t bring a New York personal injury case against your employer, or co-worker, if your employer provided you with Workers’ Compensation. Your case is barred by the New York Workers’ Compensation Law. But, if you were injured on the job because of someone else’s wrongdoing or negligence, you can bring a New York personal injury lawsuit against that person or company.
Who are the non-employer, non-co-workers who might be responsible for your injury? Usually they are: (1) other companies and their employees who were working on your job site or who installed or erected something at your workplace; (2) other companies or their employees if you were on their premises; (4) the manufacturer or distributor of whatever machine or other product injured you on the job site; (5) the owner of the premises where you were injured (if this is not your employer) or (6) in construction work, any other subcontractor or contractor who is not your employer, or the owner of the construction site.
If you were injured on the job by the negligence of someone other than your employer or co-workers, you are still entitled to workers’ compensation benefits (from your employer’s workers’ compensation carrier) but you can, in addition, bring a New York personal injury claim against the at-fault non-employer, non-co-worker.
So do you get double benefits? No! The Workers’ Compensation insurance carrier has a “lien” against any settlement or judgment you obtained in the personal injury claim. In other words, you have to pay Comp back out of your personal injury case for whatever medical bills and lost wages Comp has paid you.
Despite this legally required pay-back to Comp, you are still usually much better off if you can bring a personal injury action. Why? Because you can’t claim pain and suffering in your Comp claim, and you get only 60% of your lost wages. But in your New York personal injury claim you are allowed to claim pain and suffering compensation and 100% of your lost wages.
If you are injured on the job, feel free to call me so we can figure out whether you are stuck with just Comp, or whether you have the right to bring a New York personal injury action as well. I am more than happy to talk to you, even if it turns out you don’t have a case.
Email me at: firstname.lastname@example.org I’d love to hear from you!
Michael G. Bersani, Esq.
michaels-smolak.com Central NY Personal Injury Lawyer Michaels & Smolak, P.C.