Can I sue my employer and collect workers' comp at the same time?

Generally no. Workers' compensation is an exclusive remedy against your direct employer in New York, meaning you can't sue them in court for a workplace injury. But you can file a workers' comp claim AND sue a third party like a property owner, general contractor, or equipment manufacturer in the same incident.

What is a workers' comp lien on a personal injury settlement?

When you receive workers' comp benefits and then recover money from a third-party lawsuit, your workers' comp carrier has a statutory lien under WCL §29. That means they're entitled to be reimbursed for the benefits they've paid out of your third-party recovery. The lien can be reduced through negotiation, and an experienced attorney can often significantly lower the amount.

How much more can I get from a third-party lawsuit versus workers' comp?

Workers' comp covers medical bills and roughly two-thirds of your average weekly wage, subject to a cap. It does not cover pain and suffering, which is often the largest component of a personal injury recovery. Third-party construction accident verdicts in NYC regularly reach seven figures.

How does workers' compensation work in NY?

New York's workers' compensation system is a no-fault insurance program that pays benefits to employees who suffer job-related injuries or illnesses, regardless of who caused the accident. Under the Workers' Compensation Law, most employers in New York State are required to carry coverage, and an injured worker generally gives up the right to sue their employer directly in exchange for access to those benefits. Weekly cash benefits are calculated as two-thirds of the injured person's average weekly wage, subject to the statewide maximum set by the Workers' Compensation Board, which reached $1,145.43 for injuries occurring on or after July 1, 2024. Benefits can cover lost wages, medical treatment, and scheduled loss of use awards for permanent injuries to specific body parts, but the system has strict deadlines and procedural requirements that can affect a claim's outcome. If a third party, such as a negligent contractor or equipment manufacturer, contributed to the injury, the injured person may also have the right to pursue a separate personal-injury lawsuit alongside the workers' comp claim, which is something an attorney can evaluate based on the specific facts of the case.

Is bursitis covered under workers' compensation?

Bursitis can qualify as a compensable condition under New York workers' compensation when a medical provider establishes that your work duties caused or materially contributed to the inflammation. Repetitive motions like kneeling, lifting, or overhead reaching are common occupational triggers, and the New York Workers' Compensation Board evaluates each claim based on medical evidence linking the diagnosis to your specific job tasks. If the bursitis results in lasting functional limitations, it may also be rated as a scheduled loss of use under the Board's guidelines, which carry updated weekly benefit rates that reached a maximum of $1,145.43 as of July 2025. Filing a timely C-3 Employee Claim form with the Board is a critical first step, and delays can complicate your ability to recover both medical benefits and wage-replacement payments. An attorney familiar with occupational disease claims can help you gather the medical documentation needed to support your case before the Board.

Can carpal tunnel be covered under workers' compensation?

Carpal tunnel syndrome can qualify for workers' compensation coverage in New York when it develops as a result of repetitive work tasks, such as prolonged keyboard use, assembly line work, or operating vibrating tools. Under New York Workers' Compensation Law § 2(7), occupational diseases are compensable when a worker can show the condition arose out of and in the course of employment and is causally linked to the nature of the work itself. Medical documentation is central to these claims, and a treating physician's opinion connecting the diagnosis to specific job duties carries significant weight before the Workers' Compensation Board. If the condition results in a permanent partial disability affecting hand or wrist function, it may also be evaluated as a scheduled loss of use under the Board's guidelines, which in 2025 reflect a maximum weekly benefit of $1,145.43. An attorney can help gather the medical and vocational evidence needed to pursue the full range of benefits available under your circumstances.

How much does workers' comp pay in NYC?

New York workers' compensation benefits are calculated as two-thirds of your average weekly wage, capped at the statewide maximum set by the Workers' Compensation Board each year. As of July 1, 2025, that maximum weekly benefit is $1,688.19, meaning even high earners receive no more than that figure regardless of their actual salary. Scheduled loss of use awards, which compensate for permanent impairment to specific body parts, are calculated separately using a statutory number of weeks multiplied by your weekly rate, and those figures can reach into the hundreds of thousands of dollars for serious injuries. It's worth noting that workers' compensation benefits are generally not subject to federal or New York State income tax, which affects how you should compare them to your pre-injury take-home pay. Because the benefit formula, offset rules, and coordination with Social Security disability can significantly reduce what you actually receive, speaking with an attorney before accepting any settlement or closing your case is worth doing.

Workers' Comp vs. Third-Party Claims in New York

If you’re hurt on the job in New York, workers’ compensation is almost certainly your first call. It covers your medical treatment and replaces a portion of your wages without requiring you to prove anyone was at fault. For many injured workers, it’s a financial lifeline in the weeks after an accident.

But workers’ comp has hard limits. It won’t compensate you for pain and suffering. It caps your wage replacement. And it leaves money on the table when someone other than your employer caused or contributed to your injury.

That’s where third-party claims come in. Understanding the difference between these two paths, and how they interact, can mean the difference between a partial recovery and full compensation.

Workers’ Compensation: The Basics

New York’s workers’ compensation system is a no-fault insurance program. If you’re injured during the course of employment, you’re entitled to benefits regardless of who caused the accident. You don’t need to prove negligence, and your employer can’t defend by saying you were careless.

In exchange for this no-fault coverage, you give up the right to sue your employer in court. This trade-off is codified in Workers' Compensation Law § 11, known as the “exclusive remedy” provision.

What Workers’ Comp Covers

All reasonable and necessary medical treatment related to your injury, with no copays or deductibles
Temporary disability payments at two-thirds of your average weekly wage, subject to a statutory maximum (currently $1,222.42 per week as of July 2025)
Permanent disability awards based on a schedule of injuries or loss of wage-earning capacity
Death benefits to surviving dependents

What Workers’ Comp Does Not Cover

Pain and suffering: there is no compensation for physical pain, emotional distress, or diminished quality of life
Full wage replacement: you receive roughly 66% of your wages, capped well below what many construction workers and tradespeople actually earn
Loss of consortium: no compensation for the impact on your family relationships
Punitive damages: the system does not punish dangerous behavior

For many workers with serious injuries, these gaps represent hundreds of thousands of dollars in unrecovered losses.

Third-Party Personal Injury Claims

A “third party” is anyone other than your employer or a co-worker. In the construction industry, third parties are everywhere.

Who Qualifies as a Third Party?

Property owners: the building owner who hired the general contractor for the project
General contractors: if you work for a subcontractor, the GC is a third party
Other subcontractors: a different trade whose negligence contributed to your injury
Equipment manufacturers: makers of defective scaffolding, hoists, power tools, or safety gear
Architects and engineers: if a design defect created the hazardous condition
Vehicle owners and drivers: if a car or truck struck you at a work site

What a Third-Party Claim Covers

Unlike workers’ comp, a personal injury lawsuit against a third party compensates all of your damages:

Past and future medical expenses
Full lost wages and lost earning capacity (no caps)
Pain and suffering
Permanent disability and disfigurement
Loss of enjoyment of life
Loss of consortium (for your spouse)

This is why the same construction fall that generates $150,000 in workers’ comp benefits might support a $2 million personal injury verdict against the property owner.

How the Two Systems Interact

You can pursue both simultaneously. File your workers’ comp claim immediately to start receiving benefits, and file a third-party lawsuit to recover the damages workers’ comp doesn’t cover.

But the two paths are connected by a mechanism that surprises many injured workers: the workers’ comp lien.

The Workers’ Compensation Lien

Under WCL §29, your workers’ comp carrier has a statutory right to be reimbursed from your third-party recovery. If the carrier has paid $200,000 in medical bills and disability benefits, it can claim that $200,000 out of whatever you recover in your personal injury lawsuit.

This doesn’t mean you lose money by filing both claims. The lien only attaches to the amount you actually recover from the third party. And critically, the lien can be reduced.

New York law provides that the workers’ comp carrier’s lien is reduced proportionally by the attorney fees and litigation costs incurred in the third-party action. If your attorney’s fee is one-third of the recovery, the carrier’s lien is also reduced by one-third. This is sometimes called the “equitable share” doctrine.

Additionally, in many cases a skilled attorney can negotiate the lien down further, particularly when the third-party recovery is less than the full value of the claim (due to policy limits, comparative fault, or other factors).

Labor Law §§240 and 241(6): The Construction Worker’s Advantage

New York’s Labor Law creates some of the strongest protections for construction workers anywhere in the country, and these are third-party claims by definition, since they run against property owners and general contractors rather than direct employers.

Labor Law §240 (The Scaffold Law)

Imposes absolute liability on property owners and general contractors for gravity-related injuries caused by inadequate safety equipment. If you fell from a scaffold, ladder, or elevated work surface because proper protection wasn’t provided, the owner is liable. Comparative negligence is not a defense.

Labor Law §241(6)

Requires construction sites to comply with specific Industrial Code safety regulations. Unlike §240, comparative negligence applies, but the statute provides a powerful basis for liability when specific code provisions are violated.

Labor Law §200

Codifies the common-law duty to provide a safe workplace. Requires proof of actual negligence: either that the owner controlled the work method that caused the injury, or that the owner created or had notice of a dangerous condition on the premises.

Most construction accident cases involve claims under all three statutes, giving injured workers multiple theories to pursue.

The Exclusive Remedy Trap: When Employers Try to Block Your Third-Party Claim

Some employers pressure injured workers to settle quickly through workers’ comp and discourage them from pursuing third-party claims. This is not in the worker’s interest.

There is no legal prohibition on filing a third-party claim alongside a workers’ comp case. Your employer cannot fire you for pursuing a personal injury lawsuit (retaliation is prohibited under WCL §120). And your workers’ comp benefits do not decrease because you filed a separate lawsuit.

The only scenario where a third-party claim affects workers’ comp is if you settle the third-party case. At that point, the workers’ comp carrier may be entitled to a credit against future benefits, but only after its lien is satisfied and only under specific statutory formulas. An attorney experienced in both systems can structure the settlement to minimize this impact.

Practical Timeline

Here’s how the two claims typically run in parallel:

Week 1: Report the injury to your employer. File for workers’ comp immediately. Begin medical treatment. Workers’ comp covers it from day one.

Within 90 days: If a government entity is involved (a city-owned property, for instance), the Notice of Claim must be filed within 90 days.

Months 1-6: Workers’ comp benefits flow while your attorney investigates the third-party claim, identifying all potentially liable parties, preserving evidence, and retaining experts.

Year 1-3: The personal injury lawsuit progresses through discovery, depositions, and potentially trial. Workers’ comp continues independently.

Settlement or verdict: The third-party recovery is received. The workers’ comp lien is satisfied (at a negotiated, reduced amount). You keep the remainder, plus whatever ongoing workers’ comp benefits you’re entitled to for future treatment.

When to Talk to an Attorney

Immediately. The decisions you make in the first few weeks (which benefits to file for, what statements to give, whether to sign settlement documents) can permanently affect both your workers’ comp case and your third-party claim.

An attorney who handles both systems can coordinate them to maximize your total recovery. This means filing workers’ comp to cover immediate expenses while building the third-party case for full compensation down the road.