Who Can File a Workers Compensation Claim?

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Who can file a workers compensation claim in New York?

If you’ve been injured at work or become ill as a direct result of your job, there’s a good chance your employer’s workers compensation insurance will help cover medical care and lost wages.

However, there are a few types of jobs that are NOT covered, and there’s a lot of confusion about whether immigrants, independent contractors, or someone getting paid under the table can file a claim.

We’re going to cover all of these in this video, so stay tuned!

My name is Rex Zachofsky and I became a New York workers compensation lawyer 17 years ago after getting injured on the job. If you’re looking for a lawyer to help you with your claim with New York Workers Compensation Benefits, please give me a call at 212-406-8989 to schedule a free consultation.

We’re also able to assist with Personal Injury Matters, Social Security Disability, and Labor & Employment Issues.

What is a covered worker?

If you are an employee who has been injured while working or become ill as a direct result of your job, you are most likely able to file for workers compensation benefits. 

In New York State, EVERY business with employees is legally required to have workers compensation coverage, with a few exceptions that we’ll cover in just a moment.

This includes not only full-time and part-time employees, but also temp workers, seasonal employees, and casual or day labor employees. 

Family members working at a small business are also eligible for benefits. 

And domestic workers, such as a nanny or live-in maid, are also covered so long as they work 40 or more hours per week with a single employer.

What are some non-covered workers?

So what are some jobs that are not covered by New York workers comp? 

While most public school teachers are covered throughout the state, New York City public school teachers are not. 

However that doesn’t apply to school employees in non-teaching roles, such as school administrators and janitors, who ARE covered.

Also in New York City police officers, firefighters, and uniformed sanitation workers have their own compensation systems, meaning they can’t file workers compensation claims.

Those who work as seafarers, dock workers, and interstate railway workers, as well as any employees of the federal government performing duties within the state of New York are also not able to file a claim, as they are covered under the Federal Workers’ Compensation Law.

Clergy and members of religious orders are also exempt from New York workers compensation, that includes anyone working in a teaching or training capacity for a religious or charitable organization.

Most Business owners are exempt from their company’s policies unless they opt in. Depending on the nature of your business and the role you play in the day-to-day activity of the business it might be a good idea for a business owner to make sure they opt in and include themselves in their business’ workers compensation coverage. 

Independent Contractors

A big area of confusion when it comes to workers comp eligibility is independent contractors. 

Even if you are classified as an independent contractor for employment and tax purposes, you could still be considered an employee under New York state law and therefore be able to file for workers compensation benefits for a work related injury or illness.

There is a test contained in the statute to determine if an independent contractor position can be classified as an employee, I’ll include a link to those criteria in the description below.

Simply because a person thinks they may be an independent contractor, or is told they are an independent contractor doesn’t automatically mean that they are. 

A common example I run across is someone who drives for Uber or Lyft. 

Drivers can file a workers comp claim if they are injured while driving in a ride-share capacity, but drivers for food delivery services such as Uber Eats and DoorDash are not covered.  

There is also an important distinction between contractors, sub contractors and independent contractors, especially on construction sites. 

If you are unsure or have questions you should contact an attorney immediately. 

Immigration Status

One question I get all the time, even from other lawyers, is if your immigration status affects your ability to file a workers compensation claim.

I want to make this really clear: immigration status is NOT a factor when determining eligibility for workers comp benefits, even if you are undocumented.  

There’s also a common misconception that you need a social security number in order to file, which isn’t true, and you can rest assured that applying for workers comp will not have a negative impact on your immigration case. 

Even a person who is working off the books or being paid in cash—regardless of immigration status—is entitled to benefits if they are injured on the job. 

This can be an obstacle when it comes to determining your average weekly wage and how much your benefits will be, but it does not prevent you from being able to file a claim. 

For more information on how to calculate your average weekly wage, be sure to check out my other video on how much New York workers comp pays.

Understanding if you are eligible to file a workers compensation claim is very important.

It’s often your only option for medical care after sustaining a work-related injury, illness, or disability because standard health insurance will refuse to cover treatment.

That’s why it’s important not to let factors such as your immigration status or type of employment deter you from getting the benefits you are entitled to. 

We have helped hundreds of people in New York State get the maximum amount of workers comp benefits possible, including immigrants and those working under the table. If you have questions about your case, call us for a free and confidential consultation at 212-406-8989.

And if this is your first time on my channel, be sure to subscribe and turn on notifications for the most up-to-date videos on filing for New York worker’s compensation.

Click here to watch this video next, and I’ll see you there!

Resource Links

⚠️ Link to "test" for Independent Contractors: http://www.wcb.ny.gov/content/main/coverage-requirements-db/independent-contractor.jsp


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