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When an Injured Person Can Recover from an Employer Due to Negligence

by Michael Rose

New York requires employers to carry Workers’ Compensation insurance which covers full-time, part-time, temporary, and even undocumented employees. When employees are injured on the job, they are automatically eligible for Workers’ Compensation benefits. Workers’ Compensation benefits generally cover all medical expenses associated with the injury, as well as lost wages, which are classified as “economic damages.” This differs from Personal Injury lawsuits where an accident victim can also recover for “non-economic damages” from the culpable party.

Non-economic damages often make up a significant, if not the majority, portion in accident victims’ recovery. Non-economic damages refer to pain, suffering, emotional distress, loss of society and companionship, loss of consortium, loss of enjoyment of life, as well as their full wages and benefits that are not covered by Workers’ Compensation.

While Workers’ Compensation benefits provide injured workers physical and financial relief, it also relinquishes workers’ rights to sue their employer for negligence – with a widely overlooked exception that provides injured workers an opportunity to recover for non-economic damages when all else fails.

New York Compensation Law § 11 exposes employers to liability when an employee suffers a “grave injury.” The statute provides:

“a “grave injury” which shall mean only one or more of the following: death, permanent and total loss of use or amputation of an arm, leg, hand or foot, loss of multiple fingers, loss of multiple toes, paraplegia or quadriplegia, total and permanent blindness, total and permanent deafness, loss of nose, loss of ear, permanent and severe facial disfigurement, loss of an index finger or an acquired injury to the brain caused by an external physical force resulting in permanent total disability.”

This list is exhaustive and narrowly construed. For example, in Castro v. United Container Machinery Group the Court of Appeals of New York held that loss of multiple fingertips is not covered under the statute as “’loss of multiple fingers’ cannot sensibly be read to mean partial loss of multiple fingers.” One year later, in Meis v. ELO Organization, the Court further held that loss of a thumb is not a covered body part since it is neither a finger, nor can it be interpreted to mean total loss of use of a hand.

Proving complex cases with high burdens is costly and time-consuming, but both are necessary in order to truly be successful – especially in cases involving grave injuries. This is because those culpable will be relentless in their defense as the more serious an injury is, the more financially exposed the liable parties are. Additionally, in grave injury lawsuits, every culpable party is fully responsible for non-economic damages, regardless of their relative culpability. This means a gravely injured victim can hold their employer responsible for the full amount of their non-economic losses if the other party has insufficient insurance coverage.

While penetrating the significant protections Workers’ Compensation laws provide employers coupled with their ruthless defense may seem hopeless, there are ways injured workers can get a real shot at receiving the compensation and justice they deserve. The first and most important decision will be who will be representing their interests. All too often law firms discourage injured workers from pursuing the actual value of their case because they: would rather make money off quantity than quality and accept the first offer made; refuse to spend thousands of dollars to retain crucial experts; do not possess the necessary expertise for cases they obtain; they are not trial lawyers and will settle for a fraction of the case value before seeing the inside of a courtroom – the list goes on. However, hiring an experienced Personal Injury law firm that utilizes every available resource, prepares every case as if it is going to trial, and aggressively fights for its clients ensures accident victims’ rights are given the utmost protection.

Since its inception over 16 years ago, Hach & Rose, LLP has specialized in workplace accidents. The firm obtained a jury verdict of thirteen million dollars on behalf of an injured painter who fell from a ladder and sustained a traumatic brain injury as a result of inadequate safety measures being in place. In this case the injured person’s employer was found responsible under the Grave Injury Statute. While the attorneys at Hach & Rose, LLP understand money can never remedy the wrong done, they do understand by fighting relentlessly for the rights of injured workers during their – and their families’ – most difficult time of their lives will provide them with the closest possible alternative.

Hach & Rose, LLP has continuously proven there is no distance too great or burden too high that cannot be surmounted when passion and skill are inextricably invested in each and every client’s case. If you or a loved one has been in an accident, protect your rights by calling Hach & Rose, LLP at (212) 779-0057 for a free consultation.

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