Common Accident Myths

The laws that control construction accident claims in New York can be complex and confusing. As a result, "myths" can develop about construction workers' rights and legal options after they are injured on the job. The following are seven of those myths (and what you should know about them):

  • Myth #1: If you collect workers' compensation benefits, you can't file a lawsuit.

    If you are injured in a construction accident in New York, you can actually pursue both workers' compensation benefits and damages through a personal injury lawsuit. You can obtain medical benefits and a portion of your lost wages through a workers' compensation claim. You can also seek additional compensation from the construction site owner, contractor or its agents based on a violation of New York Labor Law that led to your injury. In this claim, you can recover all of your medical expenses and lost income as well as pain and suffering damages – in other words, you can seek what workers' compensation does not cover.

  • Myth #2: If you return to work, you can't pursue a construction accident lawsuit.

    There is nothing wrong with going back to work after being injured in a construction accident, and it won't prohibit you from bringing a construction accident lawsuit under New York Labor Law. If you can only return to a lower-paying job or one with less potential for salary increases in the years ahead, you would simply seek to recover for that impairment of income in addition to seeking medical expenses and pain and suffering damages.

  • Myth #3: If you are partially to blame for a construction accident, you can't bring a lawsuit.

    The role of your own negligence in causing an injury is not a defense to a claim brought under Labor Law § 240(1) or (2) – generally known as New York's "Scaffold Law." To recover damages based on a violation of those statutes, all you need to show is that your negligence was not the sole cause of your injury. If you can show that a violation of the statute by a construction site owner, contractor or one of its agents served as a cause of your injury, then you could not be deemed to be the sole cause of your injury. Thus, you could recover damages.

    In a claim brought under Labor Law § 241(6) or § 200, you must show how a violation of a Labor Law statute by an owner, contractor or agent amounted to negligence. So, your own negligence could be raised as a defense.

    With that said, New York is a pure comparative fault state. So, even if you are partially at fault for your construction injury, you are not barred from recovering. Instead, your recovery is reduced according to the percentage of fault attributed to you.

  • Myth #4: If you file a construction accident lawsuit, it will take "forever" for your case to go through court.

    The reality is that most construction accident lawsuits are resolved without the need to take a case to trial. They often are resolved through settlement negotiations with the insurance company of the construction site owner, contractor or agent involved in the case. How long it takes to reach a settlement depends on how well you have prepared your case for negotiations and the reasonableness of the other side. If the insurance company simply refuses to make a settlement offer that would fully and fairly compensate you, then yes, there may be a need to take your case to court, which can add time to a case.

  • Myth #5: If a general contractor hires a subcontractor to do work, the general contractor can't be held liable for injuries caused by a Labor Law violation.

    A construction site owner or general contractor certainly can delegate duties to another party, or subcontractor. However, they cannot delegate the responsibility to pay damages to a worker who is injured due to the subcontractor's failure to comply with the New York Labor Law. This is called "absolute liability."

    So, as an injured worker, you can seek a full recovery of damages from the owner or general contractor, even if they delegated duties to a subcontractor. Later on, the owner or contractor can bring its own claim against the subcontractor to recover the share of damages they paid to you.

  • Myth #6: Only OSHA regulations matter in New York construction accident cases.

    In New York, construction site owners, contractors and their agents must comply not only with Occupational Safety and Health Administration (OSHA) regulations but also those set out in Rule 23 of the New York State Industrial Code.

    OSHA regulations play an important role in ensuring that a work site is safe.

    OSHA can conduct inspections, issue citations and fine employers who violate regulations. This provides an incentive for employers to comply with OSHA rules.

    However, in terms of seeking compensation for a construction injury, OSHA regulations do not play as big of a role as one might imagine. For instance, to bring a claim under Labor Law § 241(6), you must show that a violation of a specific, concrete provision of the NYS Industrial Code occurred. An OSHA violation cannot be cited in support of a Labor Law § 241(6) claim.

    You can rely on the violation of an OSHA regulation to assert a claim under Labor Law § 200. However, that violation can only serve as evidence of negligence. The violation does not "automatically" constitute negligence and entitle you to a recovery.

  • Myth #7: If you are an undocumented worker, you can't bring a claim under New York Labor Law

    This not necessarily true: It depends on whether the undocumented worker used fraud to obtain his or her job.

    Under the Immigration Reform and Control Act of 1986 (IRCA), it is illegal to knowingly hire an undocumented worker or to use fraud to induce the hiring of an undocumented worker. However, the IRCA does not make it illegal to work without documentation.

    So, as New York courts have held, if there is no evidence that a worker violated the IRCA by, for instance, using fake or false documents to get a construction job, the worker should be permitted to recover lost wages and other damages under the Labor Law.

    This makes sense: If it was the other way around, it would basically allow construction site owners and contractors to get away with having unsafe work sites by hiring undocumented workers.