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Yes, but as you may expect, it’s complicated. New York, like most other states, has an exclusive remedy law. This law states that in most cases, injured workers must file workers’ compensation claims. All exclusive remedies have loopholes and exceptions, but New York’s exclusive remedy law has more exceptions and loopholes than the average state law.
The exclusive remedy law applies to trauma injuries, like falls, as well as occupational diseases, like hearing loss. Personal injury and/or worker’ compensation benefits are available even if a pre-existing or non-work condition contributed to the risk and/or severity of injury.
In a catastrophic (life-threatening) injury case, the economic losses alone, mostly medical expenses, usually exceed $150,000. Although insurance companies earn more than $1 trillion a year, they routinely offer pennies on the dollar in these cases. So, a New York personal injury attorney is an important partner. The average attorney-negotiated settlement is more than three times higher than the average non-attorney negotiated settlement.
Workers’ Compensation Basics
The aforementioned economic losses are usually overwhelming. Most families have little or no savings. They can’t possibly pay these bills and absorb the losses.
Workers’ compensation pays no-fault benefits that replace lost wages and pay “reasonably necessary” medical bills. Both categories appear straightforward and objective, but they aren’t.
A victim’s AWW (average weekly wage) determines the wage replacement benefit. The “net pay” figure on a paycheck is often misleading. This figure doesn’t include non-cash compensation, like loan repayment or vehicle allowance. Furthermore, if the victim recently switched jobs or got promoted, the net pay figure from the last few paychecks is almost meaningless.
Similarly, “reasonably necessary” is a very subjective phrase. That’s especially true in New York, since job injury victims can choose their own doctors. Independent treating physicians and company doctors often don’t see eye to eye on what’s reasonably necessary.
Because of these issues, job injury victims without lawyers could get shortchanged. The insurance company uses flawed and one-sided information to determine the amount of compensation, and then makes a low-ball “take it or leave it” offer. A New York workers’ compensation lawyer challenges these shaky assertions and to work towards obtaining the maximum compensation for your serious job-related injury.
Personal Injury Basics
These injury claims are more complex. Victim/plaintiffs must prove negligence. However, the payoff is bigger. In addition to compensation for economic losses, a personal injury lawyer can also obtain compensation for pain and suffering, loss of consortium (companionship), emotional distress, loss of enjoyment in life, and other noneconomic losses.
For example, most people have a duty of reasonable care in most situations. People breach their duty of care by driving aggressively, ignoring property injury hazards, or failing to warn people about dangerous products. If the breach causes injury, compensation is available.
Common negligence defenses include comparative fault and assumption of the risk. Comparative fault shifts blame from the tortfeasor to the victim. For example, a victim might provoke a dog or drive under the influence of alcohol. “Provocation” has a very narrow definition in New York. Additionally, the insurance company must prove the victim’s carelessness substantially contributed to the injury.
Assumption of the risk usually involves a “Beware of Dog” or other warning sign. The insurance company must prove the victim saw the sign, could read the sign, and could understand what the sign meant, or else the defense doesn’t apply.
In both situations, jurors must divide fault on a percentage basis, such as 50-50. New York is a pure comparative fault state. Victims are eligible for a proportionate share of damages even if they were 99 percent responsible for the injury.
Getting Around the Exclusive Remedy Law
Despite the aforementioned exclusive remedy law, job injury victims may normally sue a defective product manufacturer, a general contractor, a negligent supervisor, or any other third party.
Manufacturers have a duty to warn customers about dangerous side-effects. Asbestos-laced materials are a good example. Before 1980, almost every physical structure contained asbestos. Manufactures knew of the danger but didn’t warn anyone.
General contractors and negligent supervisors are immune from lawsuits in other states. But not in New York. These parties may implead the employer, who usually refers the claim to a workers’ compensation carrier. “Impleading” is a very complex legal process which basically splits responsibility among multiple parties.
Other exceptions to the exclusive remedy rule include the employer’s failure to provide coverage by one of the methods required in the statute and an employer’s or agent’s intentional tort.
Many injured workers may file workers’ comp and personal injury claims. For a free consultation with an experienced personal injury lawyer in New York, contact Napoli Shkolnik. We do not charge upfront legal fees in these matters and only recover a fee when we win your case.