Does Workers’ Compensation Bar My New York Injury Lawsuit?

I get calls from people all the time like this one: “I was injured at work, and I am getting comp, but it’s not enough to pay the bills. Can I sue for more”?

But I need more info. So I start asking questions back. As I listen to how the accident happened, I am trying to see if anyone other than the employer or co-employees was partially at fault. Was some third-party, such as an outside contractor, partially responsible? If not, at least a little bit, then we can’t sue anyone. That’s because the employer and co-workers can’t be sued, even though they were at fault, as long as the injured employee got comp. This is known in colloquial legalese as “the workers’ comp bar”.

Just to make sure we can’t sue anyone, after I have all the facts, I usually ask the caller, “can you think of anyone who was at fault for this accident other than your employer or your co-workers”? If the answer is “no”, then chances are the guy is stuck with just his comp, which sucks, because that pays, at most, 2/3 of his pay. If you are a member of the working class, and you are just barely getting by on full pay, imagine trying to pay those same bills on 2/3 pay. A lawsuit, on the other hand, could result in full payment of lost wages, plus pain and suffering compensation.

Sometimes an employee works for one company, but is sent to another company to work. For example, a temp employment agency might send a worker to an outside company for a day’s work. If the worker gets hurt because of that company’s, or it’s employee’s negligence, can he sue?

As usual, the answer is “depends”. New York has a “special employment” a/k/a “borrowed servant” doctrine, which basically says that if you are employed by Company A, which lends you to Company B, and you are injured because of Company B’s negligence, you can’t sue Company B as long as Company A provided you with workers’ compensation. Although the courts consider several factors in determining whether to apply this “special employment” doctrine, the main one is “control”. If Company B “controlled” your work, i.e., supervised you, told you what to do and how to do it, then generally you are considered a “borrowed servant” and the “special employment” doctrine bars you from suing Company B, just as it would bar you from suing your true employer, Company A.

The only way to know for sure whether your lawsuit is barred by workers’ compensation, or there is a way around the workers’ comp bar, is to talk to a qualified New York personal injury lawyer. So call me!

Keep safe!

Mike Bersani
Email me at: I’d love to hear from you!

Michael G. Bersani, Esq.
Central NY Personal Injury Lawyer
Michaels Bersani Kalabanka


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