New York Injury Law Blog

Should  an  “undocumented  alien”  bother to bring a lawsuit should  he/she be injured?

It is clear that millions of persons in our American workforce are present in the United States without proper documentation. As any other worker, these individuals are subject to dangers in both the workplace and in pursuit of their everyday lives.

If any person institutes a lawsuit, there are several areas of loss that go into determining the “damages” that resulted from that injury. The major areas are “pain and suffering”, out of pocket expenses such as medical expenses and often, most significantly, loss of income, past and future.

To begin with anyone, documented or not, may bring a lawsuit. The status of an individual in New York is not relevant at all when referring to “pain and suffering” or “out of pocket” expenses. The fact that someone is “undocumented” does not in any way disqualify that person from bringing a lawsuit, whether work related or otherwise.

The difficulty arises with respect to past and future wages and income lost by that person . The argument was presented that if someone is theoretically disqualified from working because they do not have the proper documentation, then how can that person make any claim for wages lost as a result of an accident that prevents them from working.

The question is a valid one. Those arguing against permitting the recovery of lost wages say that to permit recovery would undermine the immigration policies of the United States since it would encourage aliens to continue to enter the United States, even without proper documentation, and enter our workforce.

New York’s highest court, the Court of Appeals, on Feruary 21, 2006, decided that undocumented aliens COULD NOT BE BARRED from recovering lost wages in a lawsuit. The court said that to do otherwise would only reward employers for hiring undocumented aliens and would actually encourage employers to hire more undocumented aliens.

One big warning: If it can be shown that the injured employee obtained their job through deception and fraud, then that person will not be able to obtain their lost wages. This makes sense because the employer, when hiring the employee, thought the person was “legal” and only hired him/her because of the fraud. There was no intent by the employer to reap a benefit from hiring an undocumented alien.

Whether you are “undocumented” or not, it is very important to contact a competent injury attorney with experience in dealing in these matters, as soon as possible, in order to protect all your rights and interests.

Posted by New York Injury Attorney Steve Orlow

In recent years, there have been millions of injuries on construction sites throughout the United States. While these can range from a small bruise to a fatality, the numbers are staggering: one in 10 construction workers will be injured on the job this year. That’s more than 400,000 men and women a year, thousands of whom live and work in NYC.

The most common accident is a fall, but burns and cuts are common, as well as injuries to legs, arms, and hands. On average, there are more than 11,000 disabling injuries every single hour of each workday in the US, with many of these occurring on NYC work sites. To protect yourself and your rights, it is vital, then, to have able New York injury attorneys on your accident case.

10 percent of construction workers in NYC get hurt on the job every year. Ironworkers are said to be especially at risk, primarily for burn injuries.

Fortunately, there’s a light at the end of the tunnel: even if you are already receiving workers’ comp benefits, you may still be entitled to more money for your injuries. Often, third parties are partially responsible for accidents caused on a construction site. These third parties could include equipment manufacturers or even coworkers. In any case, the settlement you might receive from such a suit could be exponentially greater than your workers’ comp benefits.

The law in New York, and in many states, prohibits an employee from suing either their employer or a fellow worker for any incident that may have harmed that employee during the course of his employment.    The idea behind this is basically to promote harmony and efficiency in the workplace which would soon disappear if workers and employers were suing each other.    To protect the harmed worker, a system of “Workers’ Compensation’ has been created.

Workers Compensation assures employees that in the event they are injured “on the job,” then they will be fairly reimbursed for both their medical expenses and for their lost wages.   This is totally regardless of who, or even if anyone, was at fault for the injury.   Both the medical payments and any other money award to the worker goes according to a fixed schedule.   Special judges and boards decide if and how much to award.

Employers are responsible for carrying workers’ compensation insurance. A worker should realize that if an employer failed to carry workers’ compensation insurance for any reason, the workers will still be covered.  The worker should report the accident to the workers compensation authorities. They will see to it that the worker is covered and deal with the employer appropriately through back charging the employer and adding possible penalties or in utilizing a special fund to cover uninsured workers.

It is to your advantage to consult with an attorney that concentrates his practice in the area of workers compensation in order to be assured that you will get the maximum benefit out of a system that can be somewhat confusing for the average person.   The fee paid to a workers’ compensation attorney in New York will not come out of your pocket but will be awarded by the Workers’ Compensation Board.

Injured “On the Job” by Other Than a Co-Worker

What happens if an employee gets injured on the job and someone other than that employee’s employer or co-worker is at fault?   This may happen, for example, if an employee is on his or her way to a meeting and gets into an auto accident.   It may happen if a worker is on a construction site and is injured because of the careless act of someone working for another subcontractor.

In such an event the employee actually gets two shots at the apple !  First, he or she is entitled to any and all workers’ compensation benefits that are available.   But even beyond that, the employee may also bring a regular lawsuit against the party that caused and was legally responsible for the accident.   So while the employee will get their workers’ compensation, the employee may successfully obtain a settlement or judgment based on the pain and suffering experienced by the worker as a result of the accident.   Much more often than not, the award resulting from litigation (suing) is greater (and many times much greater) than the compensation received through workers’ compensation.  It is really a “no lose” proposition for the employee.

NOTE, however that in the event workers compensation has given the employee an award and paid medical expenses and the employee then successfully recovers money in a lawsuit, the Workers’ Compensation Board will expect to be paid back much, if not all, of the amount it paid to the worker out of that amount recovered in the lawsuit. The worker will be left with the leftover amount from the lawsuit. However, he will  already have received the workers’ compensation award and have had his medical expenses paid.  So he has those amounts, and now he also has the “extra” amount received as a result of his lawsuit. Again, this presents a “no lose” situation for the worker.

As you might expect, this can be an area that is both difficult at times to understand and to navigate.  It is absolutely imperative that an injured worker contact a knowledgeable attorney as soon as possible to see that his or her best interests are protected.

CAUTION: Even if you think no “third party” is involved and that you are only dealing with fellow workers and an employer.  This may not be the case.   Examples may be maintenance workers that are employed through an outside company, or business trucks that are rented and therefore may make rental companies liable!  Always speak to a qualified workers’ compensation attorney if you are injured “on the job”!

Downstate New York District Workers Compensation Offices

Brooklyn District (NYC)

Counties serviced: Kings, Richmond

Edward M. Joyce, JR. – District Administrator

Tom Agostino-District Manager

1-800-877-1373

Fax- 718-802-6642

111 Livingston Street

Brooklyn, NY 11201
Hauppauge District

Counties Serviced: Suffolk

Karen Dawidziak-District Administrator

Robert F. Williams-District Manager

1866-681-5354

Fax: 631-952-7966
Hempstead District (Long Island)

Counties Serviced: Nassau

Alan Landman: District Administrator

Alan Gotlinsky-District Manager

1866-805-3630

Fax: 516-560-7807

175 Fulton Avenue

Hempstead, NY 11550
Manhattan District

Counties Serviced: Bronx, New York

Frank Vernuccio-District Administrator

Joann Shelton-District Manager

1800-877-1373

215 West 125^th Street

New York, NY 10027
Queens District

Counties Serviced: Queens

Wayne D. Allen-District Administrator

Carl Gabbidon-District Manager

1800-877-1373

Fax 718-291-7248

168-46 91^st Avenue

Jamaica, NY 11432