I’ve been in an Accident. Now What?

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If you have been hurt in a construction accident, there are specific steps you should take – and avoid – in order to protect your right to just compensation.

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Timeline of a Construction Accident Claim

The time it takes to resolve a construction accident case in New York depends on many factors. These factors include the:

  • Complexity of the investigation
  • Willingness of the parties to reach a settlement
  • Extent of pretrial litigation
  • Amount of evidence presented by both sides at a trial
  • Whether a verdict is appealed.

In this sense, no two cases are the same. One case may be resolved in a matter of months. Another case may take many years before it comes to a conclusion.

If you are considering whether to pursue a construction accident lawsuit, it may help you to understand the general timeline these cases follow and stages you will encounter.

  • 1. Investigation

    Early on in a case – either before or shortly after you enter an agreement with a law firm – you can expect the firm to conduct a thorough preliminary investigation of your case. The investigation may involve:

    • Reviewing the accident scene and taking photos of it
    • Inspecting any tools, vehicles, machines or safety devices involved
    • Examining company records and policies
    • Analyzing company, police, OSHA or other accident reports
    • Interviewing eyewitnesses
    • Analyzing medical records
    • Consulting with experts, including workplace safety experts, medical experts and economists.

    The goal of the investigation is to determine how the construction accident happened, who should be held liable and the extent of injuries you have suffered. It will look at many facts surrounding the accident, including what you were doing before it occurred (your duties) and the type of project you were working on.

    It is important to begin this investigation right away. Evidence may become lost or destroyed. Witnesses such as co-workers may grow increasingly hesitant to give a statement or testify due to fear they may lose their job. Because the financial stakes are so high, insurance companies can be highly aggressive in how they investigate these cases as well.

  • 2. Filing of a complaint and required notices.

    The next step will be to file a lawsuit, or complaint, in the county where the construction accident occurred. This lawsuit will need to be filed by a certain deadline, or within the statute of limitations. The statutes of limitations that typically arise in construction accident cases are:

    • Personal injury – Three years from the date of the accident and injury
    • Wrongful death – Two years from the death

    Different time periods apply if the other party is a state or local government agency. If it is a state agency, the lawsuit must be filed within two years from the accident date. If it is a local agency, it must be filed within one year and 90 days.

    Additionally, if a government agency is involved, notice will need to be sent immediately. Under New York law, a state or local government agency must receive notice of the intent to sue within 90 days of the date of an accident.

  • 3. Pretrial

    After a lawsuit is filed, the parties will go through a pretrial phase called “discovery.” The sides may exchange interrogatories, requests for admissions and demands for evidence. They may request independent medical examinations as well. The parties also will seek statements from parties and witnesses under oath. These are called depositions (oral statements) and affidavits (written statements). The discovery process can prolong a case if either side fails to cooperate.

    In addition to discovery, the parties may argue several pretrial motions. One of those motions will likely be a motion for summary judgment. When presented with such a motion, a court will examine all of the evidence and determine whether there is any “genuine issue of material fact” that can only be resolved by going to trial. If there is not one, the court may issue a judgment in favor of you or the construction site owner or operator, and the case will not go to trial.

  • 4. Reviewing all insurance issues.

    The ability to recover compensation in a construction accident case will depend on the amount of available insurance. An attorney will seek to determine the insurance policies and policy limits that apply to your case – typically during the pretrial process.

    Additionally, the lawyer should determine whether other forms of insurance are involved in your case – and to what extent. For instance, your medical care and rehabilitation may be paid through your private health insurance, Medicaid or workers’ compensation benefits while the result of your case is pending. It will be important to determine whether those providers have a lien on your recovery, or a right to be reimbursed from your final settlement or judgment.

  • 5. Making a settlement demand.

    At some point before trial, a settlement demand letter or package will be sent to the insurance company of the construction site owner or contractor. The demand letter will set out the factual allegations, make a demand for a specific amount of compensation and assert a basis for the demanded amount.

    What happens next will depend on whether the insurance company accepts the settlement demand or otherwise makes a settlement offer that would fully and fairly compensate you for your losses. A series of negotiations may take place in order to reach a settlement. A mediator (often a retired lawyer or judge) may be brought in to help the parties reach an agreement.

  • 6. You accept the settlement offer.

    If you accept the insurance company’s settlement offer, then you will go through the relatively quick process of finalizing the settlement. You will need to sign a release, and the construction site owner or contractor may ask you to sign a “nondisclosure agreement” that restricts what you can say about the settlement.

    The insurance company will process the settlement paperwork and ultimately disburse a check that will be deposited in an escrow account by your lawyer. The lawyer will make sure all claims on the recovery are paid, including attorney fees and costs of litigation. Finally, the attorney will issue a check to you.

  • 7. You go to trial.

    If no pretrial settlement is reached, the case will go to trial. Each side will have a chance to present evidence. This evidence can include photos, documents and testimony by expert and lay witnesses. Depending on the amount of evidence involved, the trial could last a few days or a few weeks.

    A trial may be bifurcated. This means that liability is determined during one phase. If the construction owner or contractor is found liable, then damages will be determined in the trial’s second phase. In some cases, a construction site owner or contractor may admit liability. The trial may focus solely on damages.

    Once a jury returns a verdict, and a judgment is entered, either side may file an appeal. The appeal may add several months or even years onto a case’s life.

    Keep in mind: Settlement negotiations can – and often do – occur throughout a trial. They may even continue after a trial has ended. In some cases, a construction site owner or contractor may agree to settle a claim only after a jury has returned a verdict in favor of an injured worker.

  • 8. Collection of the judgment.

    If a case goes to trial, and a judgment is entered (and ultimately upheld on appeal), then action may be needed to enforce a judgment and collect the amount due. Upon collection of the judgment, the case will wrap up much like it does after a settlement is reached, with disbursement of funds to all those with a right to the recovery – especially you.

What You Should Do

If you have been injured on the job at a construction site, you may have the right to seek compensation through New York's Labor Laws in addition to workers' compensation benefits.

Workers' compensation pays for an injured worker's medical costs and a portion of the income lost while the worker suffers from a disability. A New York Labor Law claim can also seek a recovery of medical expenses. However, in contrast to worker's compensation benefits, a Labor Law claim can lead to the recovery of all lost income as well as pain and suffering.

To ensure your eligibility for compensation, you should take these specific steps:

  • 1. See a doctor.

    Regardless of how you feel, see a doctor immediately after an accident occurs at the construction site. A doctor visit will protect your health, above all. It also will document your injury, which will be necessary if you are to seek compensation.

    Tell the doctor that your injury happened while you were doing assigned job duties at a construction site. Provide your employer's name. Your employer may require you to see a doctor provided by the company (or its insurer).

    If you do not follow your employer's mandate, you should be aware that you could harm your eligibility for workers' compensation medical benefits. However, going to a different doctor would not impact the potential recovery in a Labor Law claim.

  • 2. Report to your employer.

    As soon as possible, notify your supervisor (or whoever you are instructed to tell) that you have been in an accident and suffered an injury. For the sake of workers' compensation benefits, you must submit this report within 30 days after your injury. Tell your employer what happened. You should do this in writing and as soon as possible. Save a copy of your report.

  • 3. Preserve evidence.

    Do your best to preserve all evidence relating to your construction accident and injury. Retain – and do not wash – the clothes you were wearing on that day. Keep any casts, splints or slings you have used. Take photos of your injuries as well as photos of the accident scene, including shots of any scaffolding, tools, machinery, safety devices or vehicles involved. If your injury involved defective tools, harnesses or other gear, make sure those items are not lost or destroyed. If you cannot handle these matters, find a "point person" to do it for you.

  • 4. Keep copies of all records.

    Start a file for all of your accident records. The file should include copies of your accident report, medical invoices, prescriptions, correspondence with your employer or its insurer, workers' compensation records and receipts for all expenses that are related to your accident and injury. You may also want to keep a journal that details how your injury has impacted your enjoyment of life.

  • 5. Pay attention to deadlines.

    If you are seeking workers' compensation benefits, you will need to make sure that you are meeting all of those deadlines. Additionally, you should pay attention to deadlines you may need to meet concerning your Labor Law claim. For instance:

    • You must file a personal injury suit within three years from the date of your accident.
    • If the claim is against a state agency, you must give the state notice of your intent to sue within 90 days of the accident and file a lawsuit within two years.
    • If the claim involves a local government agency, you must meet the 90-day notice requirement and file a claim within one year and 90 days after the accident.
    • A wrongful death claim must be brought within two years of your loved one's death.
  • 6. Contact an attorney.

    You should promptly meet with an attorney who focuses on New York construction accident cases and has a firm understanding of your rights and options under New York Labor Law. An attorney can immediately help you to preserve evidence and can deal directly with insurance companies on your behalf.

    The attorney can also investigate your case, perform legal research and file a lawsuit seeking a recovery for you. The lawyer can ultimately pursue a timely settlement for you or present a powerful case on your behalf in court.

  • 7. Keep your case confidential.

    You should be careful about discussing your construction injury with anyone besides your attorney and your close circle of family and friends. For example, your employer's insurer or their lawyers may try to talk to you about your claim in hopes that you will downplay your injury or say something else that will harm your right to full compensation. If you have enlisted the assistance of a lawyer, you can refer them to your attorney instead of answering questions.

What to Avoid

IIf you are injured at a construction site due to a violation of New York's Labor Laws, you may be able to file a claim against the site's owner, contractor or their agents. Your recovery, in this sense, is not limited to workers' compensation benefits.

However, you can take steps that may ultimately harm your ability to recover full and fair compensation. Make sure to avoid these potentially costly errors:

  • 1. Waiting to report your accident.

    You should let your employer know you have been injured in an accident as soon as possible. Report your accident and injury in writing. You should note that you must do this within 30 days to maintain your eligibility for workers' compensation benefits.

  • 2. Failing to see doctor.

    To recover in a Labor Law claim, you will need medical reports that show how badly you have been injured. See a doctor as soon as possible if you did not receive emergency care after a construction accident.

    Make sure every doctor you see knows you were hurt while performing your job duties as well as the name of your employer. Make sure you go to each and every doctor's appointment as you recover – no matter how you feel. Make sure you follow the doctor's orders for treatment, medication and even returning to work.

  • 3. Failing to save records and receipts.

    Recovering damages in a Labor Law claim comes down to showing how badly you were hurt and how much it has cost you. You should create a file and save copies of everything connected to your accident.

    This includes all receipts for medical care, medicine, transportation to doctor appointments and therapy. Save all medical reports and all correspondence. If you are receiving workers' compensation benefits, your doctor should give you a report at each visit to turn into your employer. Make a copy for yourself. Save or get copies or photos of anything that shows how you were hurt and how badly you were hurt.

  • 4. Taking about your claim with others.

    You may hear from your employer, its attorneys or its insurance company. Answer questions truthfully but do not downplay your injuries. Do not provide information that is not requested. Do not sign anything.

    Also, do not make statements to others or pose for photos. Never make comments or post photos in texts or on social media (Facebook or Twitter). You should talk about your construction accident case only with family and friends that you know and trust.

  • 5. Failing to hire a lawyer.

    Many of the problems you are likely to face if you have a Labor Law claim can be handled by your attorney. Once you hire a lawyer, you can refer every question about your claim to your attorney. Your attorney works to ensure you receive all of the compensation you are legally entitled to receive. He or she will make sure your claim is the best it can be and help you to avoid mistakes that could hurt it.

  • 6. Waiting too long to take action.

    Unfortunately, if you fail to take action within certain time periods, you can lose your right to seek compensation through a Labor Law claim. These time periods are called the "statute of limitations."

    Generally speaking, you have three years from the date of your accident to bring a personal injury claim and two years from the date of a loved one's death to bring a wrongful death claim.

    However, the rules are different if the case involves a government agency.

    If the construction site owner, contractor or agent you are suing is a state agency, you must give the agency notice of your intent to sue within 90 days after the accident and then file a claim within two years of the accident.

    If the party is a local government agency, then you must give notice within 90 days and file a lawsuit no later than one year and 90 days from the accident.

    Keep in mind that it takes time for a lawyer to investigate, research and prepare a case under the Labor Law. In order to ensure your lawyer has sufficient time to complete these tasks before the statute of limitations runs, you should meet with a lawyer without delay after your construction accident.