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When a worker is injured on the job (s)he is (or should be) covered by Workers’ Compensation Insurance. These Workers Comp laws provide that regardless of fault the worker is covered for the medical treatment of his injuries and for his loss of wages due to the injury and until (s)he is back on the job.  There can be limitations on the amount of medical bills and lost wages on a state by state basis.

The Workers’ Compensation Legislation in the States both gives and takes from the worker.  As mentioned above, medical bills and lost wages are paid.  However,  in a trade off, the workers’ comp laws bar the worker from suing his employer.

Sometimes employers try to pay workers “off the books” or to treat them as independent contractors and give them a 1099 form at the end of the year instead of a W-2 form.  It is important to determine immediately upon injury whether an employer tried to treat the employee as an independent contractor.  The reason for that is an independent contractor can sue his “employer” because he is not barred by the Workers’ Compensation Exclusivity Clause.  An independent contractor on the job may have the option to choose whether he wants workers’ compensation or he wants to sue the employer in a third-party action.  And it can be advantageous to sue in a third-party action.

Some states (including New York) allow an injured employee to sue others who have been negligent on or about the job that (s)he was working at.  This is especially true in construction site cases but is not limited to them.  In the case Harold McKinley versus J.A. W. Management,  McKinley was a maintenance worker in a high rise building.  He was ascending the stairs when he slipped and fell.  The light on the stairs was out and McKinley also claimed there was a slippery substance on the stairs.  However McKinley worked for an agency who was responsible for maintaining, lighting and cleaning the stairs.  In addition to the lighting and the stairs,  however,  there was no handrail and that was an obligation of the owner of the building.

McKinley sued the owner of the building and the owner of the building brought McKinley’s employer into the case.  Both contributed the substantial settlement.

Not all states allow the defendant to implead the injured worker’s employer; however, New York does allow this.  The Fitzgerald Lawyers have been very successful with construction site injuries; especially where the workers were injured while working at a height.  And the height need not be substantial.

*N.Y. verdicts are not discounted to present value and are subject to reduction on appeal

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