Why the employer is usually off limits
In most situations, workers compensation is the exclusive remedy against an employer, meaning benefits replace a lawsuit for the same injury. New York recognizes narrow exceptions, including when the employer failed to carry required coverage and when an injury was deliberately intended by the employer, which is a very high bar that carelessness does not meet. Coworkers are generally protected in the same way. Retaliation for filing a workers compensation claim is prohibited, and in New York that complaint is generally brought before the Workers' Compensation Board. A short conversation usually clarifies whether any of these exceptions is realistic.
Lawsuits against others
The more common workers compensation lawsuit is brought against someone other than the employer. Examples include the owner or general contractor on a construction site, the manufacturer of a defective machine, or a driver who caused a crash during a work trip. New York's construction safety statutes, sometimes called the Scaffold Law, place unusual responsibility on owners and contractors for certain fall and falling-object injuries. When a third-party case recovers money, the comp carrier usually has a lien for benefits it paid, and settling that case without the carrier's consent or a court's approval can put future benefits at risk. Coordinating the two tracks is a large part of the work.
Challenging a Board decision
Sometimes the fight is within the system itself. A decision by a Workers' Compensation Law Judge can be reviewed by a Board panel, and a Board decision can then be appealed to the courts, which in New York means the Appellate Division, Third Department. Each step has a short filing deadline. Bring the decision, the hearing record you have, medical reports, and any information about other parties involved in the accident. We look at whether the employer was covered, whether a third party shares responsibility, and whether a pending decision should be challenged.
