If you are injured while working at a construction site you should undertake the following steps.
- Report your injury to your employer within 30 days. That starts the process. You should wait no longer than necessary.
- Note the names of anyone who might have witnessed the accident.
- Consult an experienced workers’ compensation and personal injury lawyer. You should proceed with your doctor selection only after consulting your attorney who will know which ones are suitable for your workers’ compensation claim.
- See the doctor of your choice. Your chosen doctor must be on a list approved by the New York Workers Compensation Board.
- Consult with your lawyer regarding a workers’ compensation claim vs a civil personal injury lawsuit – against an employer and/or a third party.
- Proceed with your plan with help of your attorney.
New York Workers’ Compensation Law
New York workers’ compensation law requires every employer to provide workers’ compensation benefits to their employees. Unlike many other states, New York does not exempt any employers based on the number of their employees. In general, those benefits include the following:
- Restoration of Lost Wages up to 2/3 of the Employee’s Average Weekly Wage up to a Specified Maximum
- Payment for Medical Treatments and Diagnostic Services
- Prescription Drugs and Medical Devices
- Payment of Rehabilitation Costs
- Death Benefits
You can find out if your employer provides the required workers’ compensation benefits by checking online at the New York Workers’ Compensation Board website at http://www.wcb.ny.gov/content/ebiz/icempcovsearch/icempcovsearch_overview.jsp
Construction Site Injuries
A workers’ compensation case and personal injury case are complicated as it is. They require the assistance of an experienced attorney. But construction sites, particularly major ones, present special problems making it more imperative that the injured party has a lawyer.
Workers’ compensation benefits are payable to an ’employee’ not an ‘independent contractor’. Sometimes the distinction is not clear in the context of the construction industry. New York law addresses the issue.
A typical construction project is conducted by a general contractor and subcontractors who deliver specialty labor, equipment, or goods. An injured person might be an independent contractor working under a contract with a subcontractor or with the general contractor.
An injured person might be an employee of a subcontractor. That subcontractor might or might not carry workers’ compensation coverage. Who is an employee? Who is his employer?
Fortunately, New York has to some extent addressed the complications of construction site accidents.
If you work in the construction industry and are paid for your services, you are presumed to be an employee, not an independent contractor.
However, an employer can rebut that presumption by showing:
- That the claimant is a separate business entity as defined by specific statutory criteria OR
- Other specified criteria of an independent contractor.
Any construction site employer or insurance company that does not want to cover your injury might seek to overcome the presumption. It is a very complex issue for which you will need the assistance of an experienced workers’ compensation attorney.
So it’s determined that you are an employee. Who is your employer? That is, who is the employer responsible for providing workers’ compensation coverage for you?
Presumably, the person who pays you is your employer. But what if that person fails to cover you for construction site accidents? Or what if he successfully rebuts the statutory presumption?
Personal Injury Case
At this point, you definitely need the help of a personal injury lawyer. You might be filing a civil lawsuit, outside of workers’ compensation law. The potential defendants might include the following:
- Your Immediate Employer
- The General Contractor
- The Manufacturer of Equipment Involved in Your Accident
- The Property Owner of The Construction Site
- Other Third Parties Whose Negligence was the Proximate Cause of Your Injuries
It should be apparent that an injured employee, particularly one injured on a construction site, should immediately consult an attorney. That attorney should have extensive experience in workers’ compensation law and personal injury law.