The topic today is: When can an injured worker sue for big, big money? We're talking about third party lawsuits, lawsuits involving when you have an accident at work. And you also have the opportunity to sue somebody else, somebody responsible for your injury.
We're gonna jump right in, as always, if you have any questions, please feel free to post them up.
And what are some examples of some common situations? Under New York State regulations and laws, you cannot sue your employer or your coworkers if they cause you to get injured on the job. If you're hurt at work and your boss is responsible, your boss is negligent, a coworker is responsible for negligent, you cannot sue them.
The only place that you can look to is workers' compensation. But if somebody else is responsible for your injury, your accident, your disability, through their negligence, sometimes you do have the opportunity to file a lawsuit against that negligent party. We call these third party cases. Why are they called third party cases? Well, you, the injured worker or the first party, your company, your employer is the second party. You can't sue them, so you have to sue a third party. We call them third party lawsuits.
Some common examples are car accidents and construction site accidents. We talk about this all the time with clients. It's no coincidence that when you're home injured and you're not working and you're watching daytime television, you constantly see commercials from attorneys about ladder and scaffold accidents. Those are third party lawsuits. Those are particularly enjoyable third party lawsuits for certain attorneys. And we're going to get into that in another video.
Say you fall from a height on a construction site or any commercial site. And you fall from an elevated position and you fall down and get hurt. Or something from an elevated position falls and hurts you. You can file a lawsuit in certain circumstances. Trip and fall, slip and fall accidents, any type of "premises cases" we call those. If you're walking, if you're making a delivery to a restaurant and you're going to the basement and the stairs are broken or they're poorly lit or there's no handrail or the stairs are uneven sizes and they cause you to fall down the stairs.
The premises case, you got hurt on somebody else's premises and they're negligence caused you to get hurt. You have the potential of filing a lawsuit against the people that caused you to get hurt. You still file your workers' compensation claim, but you do have the possibility to file a premises third party action as well. We see it sometimes with product liability cases. Maybe you're at work as a construction worker and you're using a saw. It's your boss's saw or your saw, whoevers saw. It was poorly manufactured or poorly designed or poorly assembled. And that saw malfunction causes you to get hurt. These are difficult cases, mind you. But there is the possibility of filing a third party action under a product liability theory, which is the product was somehow defective or improperly designed.
Sometimes we see maintenance issues. If your boss has a company that comes in and maintains certain equipment and they fail to do it properly and their negligence and failing to maintain equipment properly causes you to get hurt. There again is the possibility of filing a lawsuit. Now mind you, we don't handle these cases here. Specifically, we only do workers' compensation in my law firm. But we do work with attorneys who handle those third party lawsuits, those negligence actions, bodily injury, personal injury cases. Those are all terms that are interchangeable for those types of lawsuits. And again, there is the possibility that it doesn't happen in every workers' compensation case. Most workers' compensation cases are workers' compensation only. But there is the possibility in certain circumstances to sue a negligent party that caused your accident and your injury.
And if so, why and how much more? It could be a lot more. It could be a significant amount more. Why is that? Workers' compensation by the letter of the law pays for medical, it pays for your lost time, and in some circumstances permanent disability. And your lost time, the money you get while you're out of work and you're disabled, by definition, will never be your full salary.
Workers' compensation pays two thirds of your average weekly wage up to a statutory maximum. So once you earn over a certain amount of money, you cap out and you get the maximum amount. As of any accidents, the most recent average weekly wage that was sent as of for accidents between July 1st, 2023 and June 30th of 2024, the maximum amount you can receive is $1,145.43 per week. That went up about $20 since last year when it was $1,125.46. So you do cap out.
By definition, you'll never make your full salary when you're out on comp. It's as simple as that. A third party lawsuit, on the other hand, they pursue your lost wages. They pursue everything that workers' compensation pursues as part of their lawsuit plus more. And one of those additional things, those are the questions we get every day. My own clients will say, "Well, I've been out of work for a few years. What about my pain and suffering?" Unfortunately, under workers' compensation law, there is no award for pain and suffering. You could be in the most intractable, excruciating, horrible pain that anybody's ever dealt with. You're not going to get more money just because you're in pain. You will get more money if that leads to a disability and it causes you to be disabled, and it causes you to lose time, and if it causes you to have permanent injury, possibly. But simply having pain and suffering is not compensable under the workers' compensation law, but it is compensable in a third party negligence lawsuit. And that could equal a lot of money.
Similarly, punitive damages do not exist in the world of workers' compensation. And what are punitive damages? I'm sure you heard it on TV, watch the movies. Punitive means punishment. So punitive damages are, are damages are, are awards that are given to the, the plaintiff, the injury party in a lawsuit as a punishment to the defendant for doing wrong, for, for causing your injury, for being negligent. They are punishing that, that party, and that's where punitive damages come from. Punitive damages don't exist in the world of workers' compensation, unfortunately.
They can be very, very significant depending on how negligent, how careless, how wrong the person was that caused you to get hurt. So you do have the opportunity to pursue those types of damages. People also come to us in, in our world, in the workers' comp world saying, you know, I haven't paid my rent in six months since I got hurt. And I owe credit card bills and, you know, they, they want money for that.
Unfortunately, those are just not considerations that a workers' compensation judge will take because they're not provided for under the law. So workers' comp is medical benefits. They pay for you to see the doctor and get better, lost time, and possibly permanent injury. But in a lawsuit, there's much, much more there.
Yes, yes, yes, you can. And you should. For strategic purposes, if you have the opportunity to file a third party lawsuit and a workers' compensation claim, you want them to be running concurrently. You want to make sure that they're both filed timely. You don't want to miss a statute of limitations. You don't want to file your workers' compensation claim, get your treatment, and then decide five, six, seven years down the road, "Maybe I should file for my third party lawsuit because you might miss a statute of limitations." You have to file timely.
You also want to make sure the lawyers that are handling both cases are working together to make sure that everything is working the way it should be working. Make sure you're getting the treatment that you need. Make sure you're getting the benefits that you need that can sustain you while you're out of work and you're disabled. So you absolutely want to file them and you absolutely want to file them at the same time and keep them running together.
Do you have to pay back benefits? Now, this is where it gets interesting and tricky. This is something that a lot of people are not familiar with. The general answer to that question is yes. When you have a workers' compensation case and you have a third party lawsuit and the two cases are running together, when it's time to settle your third party lawsuit, when that case is coming to a close, your attorney has to get permission from the workers' compensation insurance company to settle the case.
Part of that consent process that we call it is the insurance company taking back the money they spent on your workers' compensation case from your third party case. And under the law, the law doesn't allow for double dipping. You can't get your medical benefits paid for twice. You can't get your lost time paid for twice. So since workers' compensation already paid for it and you're getting a recovery in the other case, they're allowed to take their money back because they essentially forwarded you that money. They prepay you that money and they're allowed to get it back. But they don't take it all back. They can't take it all back. And the reason for that is because you went and hired a lawyer that got you a favorable outcome and it cost you money.
If you settled your case for a million dollars, at the end of the day after fees and expenses, you might only walk away with $600,000. And if that's the case, it cost you 40% of your settlement to get that money. So they have to reduce what they're taking back by that same percentage. It's called the cost of litigation. So whatever the percentage cost you to settle your case and to get money, the insurance company has to reduce by that amount so they don't take all their money back.
In certain circumstances, and it really depends on what the numbers are and what's been going on, sometimes that can be reduced even further down. And we've seen that happen many, many times. And it's specific to the facts of the case and the dollar values and how much money is going back and forth in a particular case. But yes, they do get their money back. They don't get it all back. And sometimes you can negotiate that they get back even less. Very, very important.
And what do you have to prove? Quick answer is yes. It is more difficult. It's not more difficult to file. Filing is just submitting a bunch of papers, but proving and being successful. A third party lawsuit is more successful. And the reason is workers' compensation is a no fault system. You do not have to prove much to get workers' compensation. You need to prove that you were working and you were working in a covered employment and that you were injured while you were working. So long as those circumstances apply, generally speaking, you're covered and you have a valid case.
If you're a third party negligence, personal injury type of case, you need to prove that someone else's negligence caused you to get hurt and that that negligence was greater than your negligence. You have to show that somebody did something wrong. Somebody was careless. Somebody acted improperly and caused you to get hurt. That somebody blew a red light and hit you. Or somebody didn't put the change of light bulb in the stairway that we discussed before. Somebody didn't give you a proper harness when you're working up on a scaffold and that caused you to fall. You need to show that somebody caused you to get hurt due to their negligence. So that's why it's called a negligence lawsuit. So it is more difficult that you have to prove wrongdoing whereas in workers' compensation, you do not have to prove wrongdoing there. Seeing some questions coming in, we're going to get to those in a moment.
I mean, there's always risks. One of the questions is, "Could you be deported or could that affect future employment?" Deportation is something a lot of people are fearful of and I get it. It's a significant fear. It's a real fear. I've not seen it happen with my cases but I don't want to give anybody the wrong idea. But generally speaking, when there's a workers' compensation case, it's not something I've seen happen.
Other risks that you should know about when you have a workers' compensation case, a third party lawsuit or both, there's always the risk of them surveilling you. They follow you. They put investigators on you. Happens all the time. We deal with it frequently and they want to make sure that you're being truthful and honest with respect to your abilities. You're not faking your disabilities. Sometimes they check your medications. Make sure you're taking your medications. Some people do get prescription medications and sell them. They check up on all that stuff. So you need to be very careful.
Well, as a comparison to a workers' compensation case, it takes generally much longer. Workers' compensation cases are usually quicker from start to finish. They start when your injury first happens or right around that point in time and they usually start wrapping up within a couple of years when your injuries reach the point of maximum medical improvement. Once there's a good idea as to what your level of permanent disability is and what your long term outlook is going to be, listen, some people get hurt. They recover for a few weeks. They go back to work at full duty. That's probably the majority of cases. You get hurt. You get your treatment. You're out of work for a short period of time. You go back, you go back to your old job, full duty, and the case is a distant memory. That case is going to last as long as you're out of work, maybe a little bit longer. I always tell people your workers' comp case lasts as long as you need it to last.
A third party lawsuit lasts as long as it takes to litigate, negotiate, and finalize the case, and it could take years and years. So generally, a third party lawsuit is much, much longer lasting than a workers' compensation benefits. The trade-off at workers' compensation is you get quicker benefits, generally speaking. Sometimes you do have to litigate, and sometimes it does take longer than other cases. I'm sure workers' comp case, there are some workers' comp cases that have taken a very long time. But the trade-off is generally speaking, you get quicker benefits. Your employer pays for insurance to cover a worker in case there is an injury, and that worker will get quicker benefits, easier benefits with a lower burden of proof, not having to prove that you weren't at fault, but the amount of monetary rewards as we discussed earlier is much, much less. There's no punitive damages. There's no pain and suffering and things like that. So that's the general trade-off. And workers' comp cases generally run quicker and are a little easier than a third party lawsuit.
Got a question here, "At what point in your workers' compensation case should you file a lawsuit? Is it better to go through the motions of workers' compensation?"
I'm assuming you're asking me, is it better to run through your workers' compensation first, come to a close, and then run through your third party? Like I said before, that's not always a good idea. You want to be very careful. There are statutes of limitations. There are timeframes and deadlines that you have to file your case by. And if you miss the statute of limitations, you're generally out of luck. So it's always best to file for and get an attorney involved in both as soon as you know that you want to do that and as soon as you have that opportunity. It gives you a little more credibility, I think. People take it a little more seriously, knowing that you have attorneys and you're serious about this. You've got everything filed and you're pushing forward rather than waiting because there's really no reason to wait.
You want to have your third party attorney keep track of your medical and your treatment and things like that, surgery, your medical testing. This way everyone's kind of up to date on what's going on in both cases. It's a good idea to keep them, to file them both simultaneously as soon as possible and let them develop together. In terms of how they run over time, generally like we've been saying before, the workers' compensation will usually finish itself up a little quicker than the third party case.
But again, every case is different and it's very difficult to say what will always happen because there is no always. It's very fact-dependent and every case is different. But great question, thank you.
My first tip is evidence, evidence, evidence. It's important as evidence is in your workers' compensation case, it's even more important in your third party lawsuit. And it's because of that burden of proof. We don't have to prove much in workers' compensation to be successful in getting your case established and getting you benefits. We need to prove that you had an accident while you were working in a covered employment that you gave notice to your supervisor or your employer and that your injuries are causally related to that accident. That's all we really need to prove.
Those are the elements of a workers' compensation case. But in a third party lawsuit, a negligence lawsuit, you have to prove that somebody else, a third party, to that matter, caused you to get hurt. And it's based on evidence. Is there proof of when the building was inspected or when the light bulb was changed or when the forklift was less maintained? All those facts are very, very important. So when you're at a job site, pictures of the permits, pictures of the job site, pictures of the accident location, pictures of the items that caused the accident and the injury in a motor vehicle accident, the police reports that describe the accident super important because they show who is at fault. In a workers' compensation case, even if a delivery driver was bending down to pick up his cell phone that he dropped on the floor and caused an accident, technically he's entitled to benefits. He was working and he had an accident.
After a third party lawsuit, that would be less possible because he caused the accident. So evidence is very, very important. Equally as important is use a reputable attorney. If you have a workers' compensation and a third party case stemming from the same accident, use attorneys that you know through recommendations to be reputable, good attorneys that have worked together. It's very important when they work together. The burden of proof is higher in the third party case.
You want a good third party attorney and you want one that works well with the competent attorney. The competent attorney will help them and they'll help each other out. When it comes time to settling either or both of the cases, they can work together to maximize what they're going to put in your pocket. It's really, really important and it works to your benefit when you have good attorneys, reputable attorneys who work well together. That's the way it should always be.
Another couple of questions, "I'm recovering from surgery and I'm still in therapy. Is it a good idea to reach an agreement now or wait until my shoulder is completely recovered?"
I don't know if you're discussing a workers' comp case or a third party lawsuit. This is something that we discussed in a prior video. This is asking me more about when is the right time to settle your case. You always want to settle the case when there's still some meat on the bone and there's still some liability left on the table for the insurance company to have to pay for something. If you're recovering from your surgery, talk to your doctor about maybe doing some home exercise and maybe it might be a good time to look to settle your workers' compensation case. If it's a third party case, I don't have much opinion on it. I would say to speak to your third party attorney. You really should sit down with your attorney. I have a discussion with your workers' comp attorney. If this is a workers' comp, I see you did say workers' comp. There it is, workers' comp. You should have a discussion with your workers' compensation attorney about when the right time to strike and try to settle the case and get as much money as you can out of your case. I'm sure that's what you're looking to do.
We have another question here, "I hurt my back on the job pulling out medical instruments for surgery from the dumb waiter that wasn't level."
Well, there you go. You're asking me if there's a third party, negligence, liability type of action here and it's very possible. Things that you need to consider is who owns and who maintains the item, the dumb waiter that calls you to get hurt. If you're working in a building, if you're working for a company that's renting space in a building in the building who is a third party, it's a different company altogether, is responsible for maintaining that dumb waiter and they didn't do a good job or they knew that it was defective and that calls you to get hurt, you do have the possibility of filing a third party lawsuit. I would certainly speak to a third party attorney about that. They're very fact specific.
Like I said, workers' compensation is no fault. Where you're working, where you're hurt, good. Come on in, we'll help you out. With a lawsuit, there's a lot more behind it. They need to weigh the facts, do some research. The significance of the injury is also very important and a large consideration but a very good question nonetheless and I would recommend you call a personal injury attorney and you speak to them, get a consultation. They're fairly certain they're all free and have them answer your questions. Thank you, Kelly. If anybody else has any questions, please feel free.
Thank you everyone and please give me a call if you have questions 212-406-8989.