Workers’ Compensation Q&A: Hurt by somebody not in my company



It was right before Mother’s Day and Joe’s job as a deliveryman for Flowers R Us was in high gear. He had eight bouquets to deliver before noon and time was tight. At the corner of 88th and Broadway, the light finally turned green. Joe checked for the all clear and then hit the accelerator. Out of nowhere a yellow cab barreled across 88th Street, running a red light and ramming smack into Joe’s delivery van.

Luckily, Joe was wearing his seat belt so he didn’t go flying through the windshield. However, his neck suffered the worse case of whiplash the EMS technicians had ever seen. After the ER visit, the X-rays, the brace, the painkillers and a lot of police reports and insurance paperwork, Joe called his boss.  He was definitely in no shape to pick up vases of flowers, let alone get behind the wheel of a vehicle. He was going to be out of work for a couple of weeks. Was Joe covered by Workers’ Comp? Since the accident was caused by someone who was not a Flowers-R-Us employee, Joe and his boss didn’t know if Joe was eligible for coverage. What should Joe do!?

File, Joe, file!

Workers Compensation covers the person who is injured, in this case, Joe, regardless of who is at fault, in this case the taxi driver, OR regardless of who employed the person causing the accident, in this case the cab company. In fact, an employee who is injured as a result of the fault of another person not employed by the same employer may have TWO claims.

The first claim would be for workers compensation benefits. The second could also be a negligence action against the people who caused the injury. Not only that, the negligence case could be pursued while the injured worker is out of work and collecting workers compensation benefits. In New York State an injured worker such as Joe is allowed to file a workers compensation claim and a negligence claim for the same accident. Since the two cases are inter-related and interact with one another, when Joe files both claims, he will need to make sure to keep both attorneys informed of what is going on with the other case.

A NOTE FROM JOE:  He’s recovering just fine and wants to remind everyone there’s still time to order your Mother’s Day Flowers!

Matthew Funk, a partner at Pasternack Tilker Ziegler Walsh Stanton & Romano, LLP, has been practicing Workers’ Compensation Law for over a decade.  He is a member of the Workers’ Compensation Bar Association, Injured Workers’ Bar Association and the New York Coalition for Occupational Safety and Health (NYCOSH). He has written for the New York State Trial Lawyers’ Workers’ Compensation Decisions program and has lectured on numerous occasions focusing on Workers’ Compensation Law.

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