Understanding Construction Accident Claims

Construction accident claims are legal actions involving workers who suffer injuries while working on construction sites. These claims seek compensation for injuries resulting from unsafe working conditions, faulty equipment, falls, or other construction-related hazards. Common causes of these types of injuries include:

  • Falls from Heights Construction workers often work from elevated surfaces, such as scaffolds, ladders, or roofs. Without proper safety equipment or training, workers can fall from these heights and suffer severe or even fatal injuries.
  • Falling Objects Tools, equipment, or materials can accidentally fall from elevated areas and strike workers below. These incidents can cause catastrophic injuries, including head trauma, fractures, and lacerations. 
  • Electrocution Construction sites frequently involve the use of electrical systems and equipment. Workers can suffer electrocution if they come into contact with live wires or malfunctioning electrical devices. 
  • Equipment Accidents – Heavy equipment, such as cranes, forklifts, and bulldozers, is common on construction sites. Improper use, lack of training, or mechanical failures can result in serious machinery accidents
  • Trench and Excavation Collapses Trenching and excavation work pose significant hazards, as the walls of trenches can collapse and bury workers. These accidents can cause suffocation, crush injuries, or fatalities. 
  • Slip and Trip Hazards – Construction sites often have uneven surfaces, debris, and other obstructions that can cause workers to slip or trip. These incidents can result in sprains, fractures, and other severe injuries.

Initial Steps After a Construction Accident

  • Seek immediate medical attention. A medical professional can assess, treat, and document your injuries as necessary.
  • Adhere to your doctor’s recommendations and attend all scheduled medical appointments to ensure a full recovery and maintain eligibility for benefits.
  • Notify your supervisor about the injury as soon as possible. Provide details about how, when, and where it happened to create an official record.
  • Submit a written incident report to your employer and keep a copy of the report for your records.
  • Document the accident scene with photos and notes and collect contact information from any witnesses to the accident.
  • Keep all medical records and receipts related to your injury and treatment for future reference.
  • Consult a workers’ compensation attorney. A lawyer can help you understand your rights, communicate with your employer, and demand the benefits you deserve.
  • Stay in touch with your employer. Keep them updated on your recovery progress and any work restrictions your doctor provides.

Understanding Workers’ Compensation Claims

Workers’ compensation claims are requests for benefits by employees who have suffered injuries or become ill due to their jobs. Qualifying employees can receive financial support and medical care for work-related injuries or illnesses, ensuring they receive the necessary treatment and compensation during their recoveries. Workers’ compensation aims to protect employees and employers and reduce the need for litigation by providing a structured process for handling workplace injury and illness claims.

Eligibility for Workers’ Compensation in New York

In 2010, the New York State legislature enacted the New York State Construction Industry Fair Play Act to establish special workers’ compensation classification rules for the construction industry. In the text of the law, lawmakers clarified that these rules were necessary due to rampant employee misclassification fraud among construction employers. 

Before the Act became law, many construction employers reportedly misclassified workers as independent contractors to state and federal authorities to avoid various legal obligations. Additionally, numerous construction employers operated in the underground economy, failing to report a substantial portion of their workforce. Studies indicated that nearly one in four construction workers in New York City were either misclassified or employed off the books. 

To combat this widespread issue, the New York State Construction Industry Fair Play Act clarified whether someone working for a contractor could be considered an employee or an independent contractor. This distinction is crucial because employees are eligible for workers’ compensation benefits, while independent contractors are not.

In New York construction law, a “contractor” is any legal entity that is permitted to do business in the state and engages in construction activities. This includes both general contractors and subcontractors. Contractors are required to carry workers’ compensation insurance for their employees.

On the other hand, an “independent contractor” is a person or business entity that provides services to another entity under the terms of a contract or verbal agreement. Independent contractors operate on an independent basis and are not considered employees.

Any worker performing services for a contractor in New York is an employee under the law unless they meet certain criteria. Specifically, state law says a construction worker is only an independent contractor if they:

  • Are free from the contractor’s control in performing their job
  • Perform services outside the usual course of the contractor’s business
  • Engage in an independently established trade, occupation, profession, or business

The law also specifies what counts as a separate business entity for the purposes of determining whether a worker is engaging in “an independently established trade, occupation, profession, or business.” A business entity is separate from a contractor if it meets all the following criteria:

  • It operates without direction or control over how it provides its services, except for the desired result
  • It remains intact even if its relationship with the contractor ends
  • It has a substantial capital investment beyond basic tools and personal vehicles
  • It owns capital goods, gains profits, and bears losses
  • It offers services to the public or business community regularly
  • It reports services as an independent business on tax returns
  • It operates under its own name
  • It obtains necessary licenses or permits in its name
  • It provides its own tools and equipment
  • It hires and pays its own employees without contractor approval
  • The contractor does not present the business entity as an employee to customers
  • It can offer similar services to others independently

The law explicitly states that securing workers’ compensation insurance as a sole proprietor or partnership does not determine your employment status. However, if a construction entity meets the criteria of a separate business entity, it is legally a contractor and must classify its own workers according to the same rules.

How to File for Workers’ Compensation Benefits

If you suffer an occupational injury or illness in New York, your first step in the workers’ compensation claims process should be to seek medical treatment immediately. Unless you require emergency care, ensure the healthcare provider has authorization from the Workers’ Compensation Board before you go. Remember that your employer cannot direct you to a specific healthcare provider unless they participate in a Preferred Provider Program or Alternative Dispute Resolution Program.

When you arrive at your healthcare provider’s office, inform them that your injury is work-related and give them your employer’s name. Do not provide your health insurance details or pay for any treatment yourself. Your employer or their workers’ compensation insurer should cover all medical bills, drugs, and equipment you need to heal. Keep any receipts for expenses you incur related to travel for your medical treatment, as you could receive reimbursement.

Once your condition is stable, promptly inform your employer or supervisor about the injury, including when, where, and how it happened. Additionally, provide written notice as soon as possible, no later than 30 days after the injury, and keep a copy for your records. Within 10 days of receiving your notification, your employer must inform their insurer if you need medical treatment beyond first aid or miss at least one day of work.

Within 14 days of receiving notice from your employer, the insurer must send you a written Statement of Rights (Form C-430S) and any requirements regarding the use of specific pharmacy or diagnostic testing networks. Within 18 days, the insurer must start paying benefits if your lost time exceeds seven days. You will receive benefit payments every two weeks during your disability. If the insurer disputes your claim or changes or stops your payments, they must notify you and file a notice of controversy with the Board, explaining why they refuse to pay.

In addition to notifying your employer, you should file an Employee Claim (Form C-3) with the Workers’ Compensation Board as soon as possible. You must notify the Board of your injury or illness within two years. If you have previously injured the same body part or experienced a similar illness, you should also submit a Limited Release of Health Information (Form C-3.3).

Distinguishing Between Workers’ Compensation and Third-Party Claims

Construction workers who sustain occupational injuries can pursue two key types of claims: workers’ compensation claims and third-party claims. 

With a workers’ compensation claim, workers can secure benefits like medical care coverage, partial wage replacement, and disability payments. Workers’ compensation is a no-fault system, meaning workers do not need to prove that their employers were negligent to receive benefits. They need only demonstrate that their injury occurred during the course of employment. Typically, workers covered by workers’ comp policies cannot bring claims against their employers, as workers’ comp is meant to be an “exclusive remedy” for work injuries. 

In contrast, third-party claims involve lawsuits or non-workers’ comp insurance claims against employers or other parties responsible for the worker’s injury. These other parties can include equipment manufacturers, subcontractors, or property owners. In a third-party claim, the injured worker must prove that the third party’s negligence caused their injury. Successful third-party claims can result in compensation for the full value of lost wages, as well as for subjective losses like pain and suffering, which workers’ compensation does not cover.

Even though covered workers usually cannot file third-party claims directly against their employers, certain exceptions exist. For instance, New York’s scaffold laws hold employers and property owners strictly liable for elevation-related work injuries, such as falls from scaffolding or ladders. Suppose a construction worker falls and gets hurt because their employer failed to provide proper safety equipment or ensure safe working conditions. In that case, the worker could file a third-party claim against the employer in addition to claiming workers’ comp benefits. These scaffold laws make it easier for workers to get compensation by removing the need to prove employer negligence in elevation-related accident cases.

New York, USA. June 28th 2014: Construction along a busy street in New York City

Workers’ Compensation Benefits in New York

New York provides a range of workers’ compensation benefits designed to support injured workers and their families. These benefits cover medical care, lost wages, various types of disability, and survivor benefits. Each type of benefit has specific provisions to address different aspects of an injured worker’s needs.

Medical Care Benefits

Workers’ compensation in New York covers all necessary medical care related to a work injury, regardless of how long the disability lasts. Medical care benefits cover services such as medical, dental, and surgical care, as well as optometry, medically necessary drugs, and assistive devices like wheelchairs or prosthetics. 

Except in emergencies, you must receive treatment from a healthcare provider authorized by the Workers’ Compensation Board to be eligible for coverage. You can search for authorized providers by using the Board’s Health Care Provider and IME Search tool or by calling (800) 781-2362. If your employer uses a Preferred Provider Organization (PPO) program, you must seek treatment from a provider within that network unless specific exceptions apply.

Lost Wage Benefits

If you get hurt on the job, you are entitled to lost wage benefits if your injury causes you to miss more than seven days of work. You can also receive these benefits if you earn less because you work fewer hours or have to be reassigned to different tasks. These benefits replace up to two-thirds of the wages you lose due to the injury. If your disability lasts more than 14 days, you are eligible for lost wage benefits starting from the first day you could not work. 

Suppose you can return to work but cannot earn the same wages due to your injury. In that case, you can receive benefits worth up to two-thirds of the difference between your current and pre-injury average weekly wages. If you work for more than one employer at the time of injury, you may include wages from both jobs to determine your average weekly wage. The benefit amounts depend on your degree of disability as determined by medical reports from your doctor or an independent medical examiner.

New York imposes minimum and maximum limits on lost wage benefits. The minimum weekly benefit amount ensures that even workers with relatively low pre-injury wages receive a baseline level of financial support. As of January 1, 2024, the minimum benefit is $275 per week for work-related injuries or accidents occurring on or after that date. On the other hand, the maximum weekly benefit amount changes annually based on the New York State Average Weekly Wage for the previous calendar year. This adjustment keeps the maximum benefit in line with changes in the state’s average earnings. Your benefit payments depend on your injury date and remain fixed, even if new maximum benefits later get adopted into law.

If the insurer accepts your claim, payments should begin within 18 days of the injury or within 10 days after you notify your employer of the injury, whichever is later. In cases where the insurer disputes your claim, a judge must consider your case, and you may receive temporary disability benefits until the judge renders a decision. If the judge resolves the case in your favor, they will deduct your temporary disability benefits from your lost wages award.

Disability Benefits

There are several categories of disability benefits under New York’s workers’ compensation system: temporary total disability, temporary partial disability, permanent total disability, and permanent partial disability. Each category addresses different levels and durations of disability, aiming to provide appropriate support based on your specific circumstances.

Temporary Total Disability

You could be entitled to temporary total disability benefits if you are temporarily unable to work at all due to your injury. These benefits replace your lost wages during your recovery period. If you qualify, you can receive the full allowable lost wage benefit of up to two-thirds of your average weekly wage, subject to statewide minimum and maximum limits. These benefits continue until you can return to work or until a doctor re-evaluates your condition and classifies it as a permanent disability.

Temporary Partial Disability

Temporary partial disability benefits could be available if you temporarily lose some ability to work and earn full wages. This type of benefit compensates you based on the percentage of your disability. For example, if you are 25 percent disabled, your weekly benefit would be two-thirds of your average weekly wage multiplied by 25 percent. These benefits bridge the gap between your reduced earnings and your pre-injury wage while you continue to recover. Notably, all injuries are initially classified as temporary, even those later considered permanent, and all benefits are subject to the maximum weekly amount.

Permanent Partial Disability

Permanent partial disability benefits are available to workers who have permanently lost part of their wage-earning capacity. There are two types of permanent partial disability benefits:

  • Schedule Loss of Use (SLU) – An SLU award is a cash payment for workers who have permanently lost the use of specific body parts or functions. These include the shoulder, arm, hand, wrist, finger, hip, leg, knee, ankle, foot, or toe, as well as the loss of eyesight or hearing. SLU payments are based on a schedule set by law, which determines the number of weeks payable according to the severity of an SLU disability. For example, if you permanently lose 50 percent use of your arm, you will receive benefits for a certain number of weeks based on that percentage. If you have previously received temporary benefits, the compensation already paid gets deducted from your total SLU award.
  • Non-Schedule – Non-schedule benefits are for permanent disabilities involving parts of the body or conditions not covered by an SLU award, such as injuries to the spine, pelvis, lungs, heart, or brain. These benefit payments are based on the degree of permanent losses in your earning capacity. For injuries occurring before March 13, 2007, a worker may receive benefits as long as the partial disability exists and results in wage loss. For injuries occurring on or after March 13, 2007, benefits are payable for a certain number of weeks determined by your loss of wage-earning capacity.

Additionally, if you suffer permanent disfigurement to your face, head, or neck, you could receive up to $20,000 in benefits, depending on the extent and date of the injury.

Permanent Total Disability

You could qualify for permanent total disability benefits if you permanently and completely lose your wage-earning capacity due to your work injury. If this occurs, you could be entitled to benefits for the rest of your life, with no limit on the number of weeks payable. In certain cases, you could continue to work for additional income if your combined wages and weekly benefit payments do not exceed certain legal maximums. 

Survivor Benefits

If a construction worker dies from a compensable job-related injury or illness, their surviving spouse, minor children, or other legal dependents are entitled to weekly cash benefits. The amount of survivor benefits available is equal to two-thirds of their average weekly wage for the 52 weeks prior to the fatal accident, subject to the maximum weekly benefit. If they have no eligible dependents, their surviving parents or their estate can receive a lump sum payment of $50,000. Workers’ compensation also covers funeral or memorial expenses for work-related deaths, with maximum reimbursement amounts varying by county. 

Skyscraper in New York

Compensation from a Third-Party Construction Accident Claim

In a third-party construction accident claim, you can seek compensation beyond what workers’ compensation provides. This type of claim can provide compensation for:

  • Medical Expenses – Like with workers’ compensation, you can recover expenses for current and future medical treatment you need for your injury, including the costs of surgeries, hospital stays, medications, and rehabilitation.
  • Lost Wages If your injury prevents you from working, you can claim compensation for the full value of any income you lose during your recovery period.
  • Loss of Earning Capacity – If your injury results in a long-term or permanent disability, you can seek compensation for the projected reduction in your future earning potential.
  • Pain and Suffering Unlike workers’ compensation, third-party claims allow you to seek compensation for the subjective effects of your injuries. This includes the physical pain and emotional distress you experience due to the injury.

In some cases, you can seek compensation from both workers’ compensation claims and third-party claims. However, you should know that you might need to reimburse your workers’ compensation insurer for any benefits it already paid if you receive compensation from a third-party claim. This process, known as subrogation, prevents workers from “double dipping” – receiving duplicate compensation for the same expenses. Still, by combining both claims, you can maximize your compensation and obtain a more complete financial recovery. A knowledgeable workers’ compensation attorney can manage this process on your behalf and help you explore all your legal options.

Filing Your Construction Accident Lawsuit

You might have grounds to file a construction accident lawsuit if your injury resulted from someone else’s negligence or a safety violation on a job site. A lawyer can evaluate your situation to determine if you have a valid claim. If you have grounds to sue, your attorney will gather all available evidence, such as accident reports, medical records, witness statements, and expert testimonies, to build a strong case on your behalf. They will also file all necessary legal documents and represent you in negotiations with the responsible party’s insurance company. If a settlement isn’t possible, your lawyer can advocate for you in court and present your case to a judge or jury.

In addition to gathering and presenting evidence, your lawyer can also handle all communications with insurance companies and other involved parties. They will also meet all relevant legal deadlines and procedural requirements, which are often complex and time-consuming. Your lawyer will help you understand your options and the potential outcomes of each choice every step of the way, advising you on whether to accept settlement offers or proceed to trial. 

Furthermore, an experienced construction accident lawyer will have knowledge of relevant laws and regulations, which can significantly impact your case. They will use this understanding to identify all liable parties and maximize your payout. Working with a skilled attorney significantly increases your chances of receiving fair compensation for your injuries.

Hard working bricklayer laying concrete blocks on top of concrete foundation ground beam on new residential housing site. Fight housing crisis by building more affordable houses concept

The Role of Construction Accident Attorneys

An experienced construction accident lawyer can provide valuable assistance throughout the process of filing and pursuing a construction accident claim. Here are some ways they can help:

  • Evaluating Your Case – A lawyer will thoroughly assess the details of the accident to determine the viability of your claim. They will review all relevant evidence, including medical records and incident reports, to provide a clear overview of your legal options.
  • Gathering Evidence – Your attorney will collect useful evidence to support your claim. This might include expert testimonies, accident scene photographs, and maintenance records for equipment involved in the accident.
  • Handling Medical Documentation – Your lawyer can organize and manage all medical documentation related to your injury. This includes coordinating with providers to obtain detailed medical records and presenting these records accurately in your claim.
  • Managing Legal Procedures – Filing a construction accident claim involves complex legal procedures and strict deadlines. A lawyer will prepare all necessary paperwork correctly and on time, preventing any procedural errors that could jeopardize your claim.
  • Maximizing Compensation – An experienced lawyer will identify all possible sources of compensation, including workers’ compensation and third-party claims, to ensure you pursue the maximum financial recovery for your injuries.
  • Negotiating with Insurance Companies – Insurance companies often attempt to minimize payouts. Your lawyer will handle all negotiations with insurers, using their experience to advocate for a fair settlement that adequately compensates you.
  • Representing You in Court – If your case goes to trial, your lawyer will represent you in court. They will present a compelling case to the judge or jury, using their legal knowledge and courtroom experience to fight for the compensation you deserve.

Why Choose Dell & Dean, PLLC?

Working with Dell & Dean, PLLC, means selecting a premier personal injury firm that prioritizes your needs. From the moment we sit down with you for your initial consultation, we treat you and your loved ones like family. Our team will give your case the personalized attention it deserves, crafting a legal strategy that keeps your best interests at the forefront. 

When you come to us for help, one of our attorneys will work directly with you, supported by a dedicated team. With a dentist, doctor, and other medical experts on staff, Dell & Dean, PLLC, offers a unique ability to evaluate your case. We bring in experts early to assess your injuries and document them, establishing the strengths of your case and identifying liable parties. Our thorough approach has enabled us to recover millions in compensation for clients in situations like yours.

Since 1992, our clients have always come first at Dell & Dean, PLLC. We do not rush to settle claims. We take the time to understand your unique situation, needs, and goals. We offer virtual consultations and can come to you if you cannot visit our office. You can trust us to provide the dedicated, compassionate legal support you need after a construction accident injury. 

Contact Our Personal Injury Attorneys Serving New York & Long Island

If you or a loved one has been injured in a construction accident, don’t wait to get the help you need. Contact Dell & Dean, PLLC, today for a free initial consultation. Our dedicated team will listen to your story, review your legal options with you, and fight to secure the compensation you need.

Dell & Dean, PLLC, represents clients throughout Nassau County, Suffolk County, and Garden City on Long Island, as well as the boroughs of New York: Queens, Brooklyn, Staten Island, Manhattan, and the Bronx.