You were hurt on the job, the comp checks have started, and they cover part of what you used to earn. Nobody has asked about the pain, the lost sleep, or the months you cannot lift your kids. New York workers’ compensation pays medical care and a share of your wages without anyone proving fault. It pays nothing for pain and suffering. A separate lawsuit against someone other than your employer can. Our Nassau and Queens personal injury attorneys help injured workers bring that lawsuit alongside comp.
What Workers’ Comp Pays, and What It Leaves Out
New York requires employers to pay benefits for a work injury without regard to fault, so you never have to prove your boss did anything wrong, and your carelessness does not reduce your benefits. The main exceptions are injuries caused solely by your intoxication on duty or by an intent to hurt yourself or someone else. In exchange, comp is the exclusive remedy against your employer. Typically, you cannot sue your employer over the injury unless the employer failed to carry the coverage the law requires.
New York law sets the benefits. Comp pays your medical treatment and a weekly cash benefit. For total disability, that benefit is two-thirds of your average weekly wage, and the weekly amount can never exceed two-thirds of the statewide average weekly wage. A weekly minimum also applies, so a worker with very low wages can receive more than two-thirds of pay, up to full wages. The state recalculates that maximum every July 1, and the date of your accident decides which maximum applies. A worker who earned more than the state average loses more than a third of the paycheck.
Comp also pays scheduled awards for permanent loss of use of an arm, leg, hand, foot, eye, or other listed body part, measured in weeks of benefits. The New York State Workers’ Compensation Board explains that in a workers’ comp case, no party is found at fault, and the employer’s carrier pays cash benefits and medical care. Comp has no award for pain and suffering.
Who Counts as a Third Party
A third party is anyone responsible for your injury other than your employer and a short list of others the workers’ compensation law protects. That list is a co-worker, your employer’s comp insurer, your union, and the insurer’s or union’s employees, while acting within the scope of their jobs. Everyone else whose negligence hurt you is a potential defendant.
On a job site or on the road, the third party can be:
- A general contractor or property owner running a construction site where your employer works as a subcontractor
- A different subcontractor whose crew created the hazard
- The manufacturer of a defective ladder, hoist, saw, or safety harness
- A driver outside your company who crashed into your work vehicle
- The owner of a building or store where you were hurt during a delivery or service call
Construction workers who fall from a height, or who are hit by a falling object, may also have a claim under the state’s scaffold law. That law requires contractors and owners to provide ladders, scaffolds, hoists, and similar devices that give workers proper protection during construction, demolition, repair, alteration, painting, cleaning, or pointing (mortar repair) of a building or structure. Not every fall or falling object qualifies. The claim generally requires that a needed safety device was missing or inadequate and that this helped cause the injury. When the law applies, the owner and contractor are responsible even if they did not supervise the work, and your own carelessness does not reduce the award. If your own conduct was the only cause of the accident, however, this law does not provide a claim.
Owners of one- and two-family homes who contract for the work but do not direct or control it are exempt. When the owner or contractor is someone other than your employer, a claim under that law is a third-party claim. Our construction accident team handles these cases for workers across Long Island and New York City.
How the Two Claims Work Together
New York lets an injured worker take comp and medical benefits and also sue the negligent third party, without choosing between them. The lawsuit works differently from comp in one important way. You must prove the third party was careless, and if you share some of the blame, your award is reduced by your share.
Once both are underway, four rules connect them:
- The comp carrier gets a lien on what you recover. After the legal costs of winning, including attorney fees, come off the top, the carrier is repaid for the benefits and medical bills it paid. A court can divide those legal costs fairly between you and the carrier.
- Your recovery reduces future comp. After you collect from the third party, the carrier owes only the deficiency, meaning any gap between what you collected and the compensation the law provides.
- Settlements can need approval. A settlement for less than the compensation the law provides requires the carrier’s written approval or an order approving the settlement from the court handling your lawsuit. If you settle without approval when it is required, you can lose your right to any further comp benefits. Check whether approval is needed before you accept any offer.
- Filing late can cost you control of the lawsuit. If you accept comp and do not file in time, the law transfers the claim to the comp carrier, although the carrier must first warn you in writing. You then receive two-thirds of anything the carrier recovers above its benefits, medical bills, and lawsuit costs.
Because each rule depends on timing and paperwork, we coordinate your lawsuit with your workers’ comp claim from the start, including the carrier’s lien and any settlement approval.
When the Work Injury Happens in a Car
Delivery drivers, home health aides, and contractors driving between job sites face a third set of rules. New York’s no-fault law requires auto insurance to pay basic medical bills and lost earnings after a crash, without anyone proving who caused it. When a work injury comes out of a car crash, that law subtracts any workers’ comp benefits from the no-fault benefits the auto insurer would otherwise owe. The comp carrier pays first, and the auto insurer pays only what comp does not.
For lost wages, the no-fault benefit is capped at $2,000 a month, and the law reduces it by 20% of your lost earnings and by the comp you receive. When you sue another insured driver, the comp carrier has no lien on your recovery for the comp it paid in place of no-fault benefits. The carrier can still claim a lien for comp it paid beyond what no-fault would have covered, such as wage benefits paid after the three-year no-fault limit.
When the at-fault driver is also covered by New York’s no-fault system, you cannot recover for pain and suffering unless the injury qualifies as a serious injury. The statute limits that term to eight categories, including a fracture, significant disfigurement, and a significant limitation of use of a body function or system. New York changed these rules for car crash lawsuits filed on or after May 26, 2026. That change narrowed the serious injury list to these eight categories. It also means you recover nothing from the other driver if you were more at fault than the driver or drivers you sue.
Your doctors’ records from the first visit forward document the injury, so tell every provider exactly what hurts and what you can no longer do.
Several Deadlines Run at the Same Time
Missing any of these deadlines can cost you part of your recovery:
- Employer Notice of Injury: 30 days to give your employer written notice of the injury. The Workers’ Compensation Board can excuse late notice, for example, when your supervisor already knew about the accident or the delay did not harm your employer.
- File a Workers’ Compensation Claim: Two years to file a comp claim with the Workers’ Compensation Board. Occupational diseases have a different deadline.
- File a Personal Injury Lawsuit: Three years to file most personal injury lawsuits against a third party, with exceptions set by statute for certain claims. If you are collecting comp, the transfer rule above can move the lawsuit to the carrier well before three years pass.
- Notice to a Local Government Entity: 90 days to serve a written notice of claim when the third party at fault is a city, county, town, village, fire district, or school district, and one year and 90 days to file that lawsuit. A court can allow a late notice in some cases. Claims against the State of New York and against public authorities, such as the Port Authority, follow their own notice rules and deadlines, and some are shorter.
The 30-day notice comes first, so give your employer written notice right away and file the comp claim promptly. Start the third-party investigation at the same time, while the site, the equipment, and the witnesses are still available.
Talk With Our Garden City Team About Both Claims
When someone outside your company caused your injury, a comp check covers only part of the loss. Our practice is laser-focused on personal injury claims, and we coordinate your third-party lawsuit with your comp claim, including the carrier’s lien and any settlement approval. Contact our Garden City office today for a free consultation. We never charge an attorney’s fee until we recover for you, and our team includes Spanish-speaking staff.
