Comp is the claim every job site worker already knows about. Your employer's insurance pays the medical bills and part of your wages. Fault does not matter for that piece.
Here is what fewer workers know: comp is often only half the recovery. If someone other than your employer helped cause the injury, you can bring a separate lawsuit against them. That case runs alongside your comp claim, not instead of it.
Why You Cannot Sue Your Employer, and Why That Is Not the End of It
Workers get no-fault comp benefits. In exchange, comp is the exclusive remedy against the employer. That rule lives in Workers' Compensation Law § 11. You cannot sue the company that signs your check, no matter how the injury happened.
That trade cuts both ways. Comp pays regardless of fault, but it pays on a schedule. Wage replacement is two-thirds of your average weekly wage, capped by a statewide maximum. There is no payment for pain and suffering. There is no payment for the pension credits you stop earning the day you stop working.
The exclusivity rule only protects your employer. It protects no one else on the site. On most New York construction jobs, the party legally responsible for safety is not your employer at all. It is the owner and the general contractor. That is why the third-party case exists, and why it so often carries the real value in a serious injury. We explain how that works in more detail at when you can sue beyond workers' comp.
What the Third-Party Case Looks Like on a Construction Site
New York gives construction workers tools most states do not have. Labor Law § 240, the Scaffold Law, puts absolute liability on owners and general contractors for gravity-related hazards. A fall from a ladder, a scaffold that shifts, material dropped from above. If a required safety device was missing or failed, the owner and GC are liable. Your own carelessness is not a defense under § 240 and does not reduce the recovery.
Labor Law § 241(6) covers violations of specific Industrial Code safety rules. Labor Law § 200 covers ordinary negligence by a party that controlled the work. Outside the Scaffold Law, your own share of fault can reduce a recovery under CPLR § 1411. It does not bar the claim.
Take an electrician who falls through an unguarded floor opening. He has a comp claim against his employer's carrier and a § 240 claim against the owner and GC. Two different cases, two different insurerss, two different measures of recovery. If you work in the electrical trades, the specifics are covered on our electrician accident page. The same parallel structure applies across the trades, from ironworkers to elevator constructors.
How the Two Cases Interact: The § 29 Lien and the Consent Rule
One statute ties the two cases together: Workers' Compensation Law § 29. The comp carrier gets a lien on your third-party recovery for the benefits it paid. When the lawsuit resolves, part of the money repays the carrier, subject to a reduction for the carrier's share of litigation costs.
Section 29 also contains a trap. Settle the third-party case without the comp carrier's consent or a court order, and you can lose your right to future comp benefits. That is one of the main reasons the two cases need one team watching both. A settlement number that looks good alone can turn bad once the lien and the future comp picture are on the table.
The deadlines also differ. Most third-party construction claims carry a three-year statute of limitations under CPLR § 214. The comp claim has its own clocks, starting with written notice to the employer within 30 days of the injury. An injury that goes unreported loses both its proof and its deadlines. The steps that protect both claims from day one are laid out in what to do after a New York job site injury.
What Comp Pays, What the Lawsuit Pays, and the Pension Math
The two cases cover different losses. Comp covers medical treatment and partial wage replacement. The third-party case covers everything comp leaves out: full lost earnings past and future, pain and suffering, and the loss of what the job actually provided.
For a union member, that last category is the one that gets missed. A wage stub does not show the pension accrual, the annuity contributions, the vacation fund, or the family medical coverage tied to your hours. A member a few years short of full pension credits loses more than a paycheck when the trade ends early. A third-party case built correctly values the lifetime package. That often means an economist projecting what those credits and contributions would have been worth through a full career.
Comp will never pay that number and was never designed to. So when a worker says the union benefits will cover it, the honest answer is partial. They cover the treatment, but they do not replace the career.
If You Are Reading This for Your Husband
Spouses run a lot of these searches, because the worker themself will not make the call. They are icing the shoulder, telling you it will heal, telling you a lawyer means suing their boss and burning the crew.
You now know the answer to that one. The lawsuit does not name their employer. The law does not allow it. And Workers' Compensation Law § 120 prohibits an employer from firing or punishing a worker for filing a comp claim.
What you can do is concrete. Write down the date, the site, and how it happened while the details are fresh. Get them to a doctor and make sure they tell the doctor it happened at work, because the medical record is the proof. A conversation with a lawyer commits them to nothing. It is information, not a filing.
Companies sometimes offer to take care of things quietly, paying bills off the books to keep the injury off the record. If that offer is on the table, the piece on being told you don't need a lawyer is worth ten minutes.
How Schwartzapfel Holbrook Handles the Two Cases Together
At Schwartzapfel Holbrook, we evaluate every serious work injury as two cases from the first review. On the comp side, we check the wage calculation, the disability classification, and the treating physicians' findings as the record develops. On the lawsuit side, we identify every responsible party on the site, preserve the evidence, and build the Labor Law claim against the owner and general contractor.
Running both together is the point. We expedite the Workers' Comp claim to get you the medical and money you need now, and pursue the case against someone else to make sure you're financially protected in case you cannot work again.
If you or a loved one was hurt on a job site in New York City or Long Island, call us. The consultation is free, and it commits you to nothing.
