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Can you sue if you are Injured on the Job in New York?

The Syracuse personal injury lawyers of Michaels & Smolak want all our clients to understand the relationship between a “workers’ compensation claim” and their “personal injury claim”. They are two very different animals. But they also co-inhabit the same world. Read on to find out the relationship between the two!

So you are injured on the job. You get workers’ compensation. Can you still sue for that injury?

First thing you have to understand is a concept in New York state law called the “Workers’ Compensation bar”. New York law states that if your employer provides workers’ compensation benefits to you for on-the-job injuries, you can't sue your employer or you co-workers for those same injuries. You are “barred”, meaning blocked, from suing them. That’s not a good thing, because workers’ compensation generally pays you far less in compensation than an outright lawsuit would fetch you. “Comp” (shorthand for “workers’ compensation”) pays only, at most, 2/3 of your lost wages, all your medical treatment costs, and absolutely nothing for pain and suffering. By contrast, a full-blown lawsuit, if successful, brings you full wage loss compensation, plus full medical treatment compensation, plus full pain and suffering compensation. This is the law whether you hire personal injury lawyers in New York City or in Syracuse or anywhere in New York State.

The only good thing about workers’ compensation compared to a lawsuit is that in a workers’ compensation case you don’t have to prove “liability”. Even if the accident was your own fault, you get your workers’ compensation (as long as it happened “on the job”).

But don’t give up on a full-blown lawsuit (and it’s corresponding full-blown compensation) just because you got injured on the job and are receiving workers’ compensation. Sometimes you can get both workers’ compensation and a full-blown compensation from a lawsuit. Sometimes you can get past that workers’ compensation bar. Maybe your employer or co-worker or you yourself were at fault for your on-the-job injury, but maybe somebody else was also at fault. If somebody other your company or a coworker was partially at fault, you can bring a lawsuit against them. For example, the manufacturer of a machine that injured you may have been at fault for designing a defective, dangerous machine that caused you to get injured. Or perhaps there was an outside company that negligently maintained the machine. Other non-employer non co-employees might also be responsible in part for your injury. You can sue them. There is no workers’ compensation bar there.

When your personal injury lawyers find someone to sue, in Syracuse or elsewhere, who is not your employer/co-worker, the lawsuit that results is called a “third-party action”. In the “third-party action” you can sue for all your wages, all your medical expenses and all your pain and suffering, both past and future.

If you are getting workers’ compensation from your employer and you also bring a third-party action against others, it is important to understand how your workers’ compensation claim and your third-party claim “intersect”. Here’s how: When you settle or get a judgment from your third-party action, you are going to have to pay back workers’ compensation to the tune of about 2/3 of the money they spent on your medical expenses and compensating you for lost income. New York lawyers all across the State, including in Syracuse, call this obligation the “workers’ compensation lien”. The workers’ compensation insurance carrier who paid your medical bills and part of your lost wages has a “lien” against your third-party settlement or judgment.

But it is important to understand that the workers’ compensation lien is often negotiable. If your lawyer knows what he or she is doing (and he’d better for your sake!) he can often convince the workers’ compensation carrier to take less than 2/3.

Yes, it’s important to hire a personal injury lawyer who “knows what he or she is doing”. This can’t be gainsaid. If your third-party action lawyer fails to negotiate your workers’ compensation lien downward, or fails to fight tooth-and-nail to get you as much as is humanly possible from the third-party negligent party, you are not doing yourself or your family justice. In fact, you are doing yourself and your family an injustice.

So if you're injured on the job what do you do to find out your rights? Call a competent personal injury lawyer and you have them investigate whether there is someone else to sue so you can get full recovery instead of the small, partial recovery that comp gives you. If you contact our Syracuse personal injury lawyers of Michaels & Smolak, the consultation is free.

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He is one of the top lawyers in central New York & has the accolades to show for this, but in my book he's the top lawyer in the country. I am honored to have had the opportunity to work with Mr. Bersani & to have had him on my team! Matthew
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I admire the amount of background work he did which was instrumental in getting me a very good settlement. Also, having never been involved in a personal injury lawsuit, Michael was very patient explaining the legal issues. You're in good hands with Michael Bersani and the firm of Michaels & Smolak. Richard
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Dave took over my wrongful death case after it was badly messed up by another lawyer. He was dogged in his pursuit of all the information needed to make a solid case, and he succeeded in bringing it to a very satisfactory settlement. He was honest and straightforward, kind and compassionate through meetings, depositions, court appearances. I highly recommend him. Christine
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