Compliance with the deadlines reserved by law is a key obligation of the injured party and can determine the further course and success of the case. Therefore, special attention should be paid to them.
An employee injured in a work accident or suffering from an occupational disease is primarily protected by Workers’ Compensation insurance. This is insurance that the employer should have purchased to protect themselves from the direct consequences of unfortunate accidents that their employees may suffer. Therefore, if you have a work accident, first report it to your employer (preferably in writing within 30 days) and seek immediate medical advice, informing the doctor that your current health condition is the result of your work or a work accident. It should be remembered that according to Workers’ Compensation law, an injured employee is entitled to free medical care for an illness related to the accident or occupational disease, and replacement wages for the period of incapacity for work. The injured party’s immigration status cannot be an obstacle to obtaining these benefits. The theory is that the amount of replacement wages should be 2/3 of the gross weekly salary, with a current maximum of $808.65 tax-free. In turn, the period of payment of replacement wages should cover the period of the employee’s incapacity for work. Free medical care and reimbursement of travel expenses related to treatment will last as long as doctors and the court deem them necessary.
What about a civil case?
As I mentioned at the outset, the injured party should ascertain whether third parties are responsible for the accident or occupational disease in their case. However, they cannot directly sue the employer (even if the accident or illness is the result of the employer’s negligence). The employer has protected themselves against such an eventuality by purchasing Workers’ Compensation insurance, from which the employee benefits. However, if the building owner or general contractor was supposed to ensure safety at the workplace and failed to fulfill their duties, they may be responsible for the illness or accident suffered by the employee. Press advertisements about the biggest wins usually concern precisely such situations, when someone responsible for safety in a given place failed to fulfill their duties. Labor Law 240 deals with this. You should contact a civil law attorney as soon as possible so that they can investigate and handle the case. Since finding the guilty party is crucial in a civil case, an attorney will best protect your interests. In the case of single or two-family homes, proving the owner’s guilt is very difficult, because they do not have the same obligation to ensure work safety on their property as in the case of large buildings. If, on the other hand, the building owner is a city, e.g., New York, the obligation to report the incident to the owner must be fulfilled within 90 days of the accident date, and then sued in court within (1) year. Failure to meet these deadlines may result in the loss of the ability to sue and claim compensation from the building owner, i.e., the city.
Workers’ Compensation vs. Civil Case
I would like to emphasize that a Workers’ Compensation case and a civil case can proceed in parallel. If the cases are handled by different attorneys, they should be informed that another attorney is simultaneously handling the civil case or Workers’ Compensation case. Most often, for the good of their client, they will cooperate closely. A very important, I repeat, very important matter is obtaining the consent of Workers’ Compensation insurance to conclude the civil case (WCL Section 29). Failure to fulfill this obligation may result in Workers’ Compensation insurance not being obliged to pay even an already awarded pension or compensation. In almost every case, I strongly advise against concluding a civil case before the end of the Workers’ Compensation case. The theory of law states that one cannot receive compensation twice for the same thing, even if different insurance companies are involved on the Workers’ Compensation and civil case sides. If Workers’ Compensation insurance pays for the injured party’s treatment and pays them replacement wages, it has the right to recover the amounts paid from the compensation awarded in the civil case. However, the parties often reach a compromise regarding the sum that the Workers’ Compensation insurer will want to recover from the compensation awarded in the civil case. Regardless, Workers’ Compensation always reserves the right to suspend the payment of an awarded pension and reduce its obligations to the injured party by the amount of compensation paid in the civil case (Section 29 of the Workers’ Compensation law). I will explain this with an example. After two years of illness related to a work accident, the injured party was deemed totally permanently disabled and received a lifelong Workers’ Compensation pension (e.g., $300 per week). Then, after the civil case concluded, they received compensation of $300,000 net (i.e., after paying attorney’s fees and reimbursing the Workers’ Compensation insurer for previously paid replacement wages). They will not receive the previously awarded pension of $300 for another 19 years and 3 months, i.e., until the $300,000 compensation received in the civil case is exhausted ($300 per week for 19 years and 3 months amounts to $300,000). Only after the aforementioned 19 years and 3 months can Workers’ Compensation, at the request of the injured party, resume payment of the previously awarded lifelong pension of $300 per week. Of course, if the injured party did not work and earn during that time. This rule is very strictly observed by insurance companies, and at the same time often misunderstood by injured parties.
I will gladly explain the principles of Workers’ Compensation and its connections with a potential civil case related to your situation. The consultation regarding your accident is free. I invite you to my office!
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