It can involve all three. For an employee injured in a motor vehicle accident in the course of employment, a January 3, 2003 opinion of the New York State Insurance Department's Office of General Counsel says that workers' compensation coverage is primary in lieu of no-fault benefits. No-fault first party benefits are reduced by amounts recovered or recoverable under workers' compensation. If someone other than your employer or a co-worker caused the crash, you can also pursue a claim against that person without giving up workers' compensation.
Key facts
- Workers' compensation: written notice of the injury must be given to the employer within thirty days after the accident, unless the Workers' Compensation Board excuses the failure.
- Workers' compensation: Form C-3 must be filed within two years of the accident.
- No-fault: written notice of the accident must go to the insurer as soon as reasonably practicable, and in no event more than 30 days after the accident, unless written proof gives clear and reasonable justification for the delay.
- Lawsuit: an action for personal injury must be commenced within three years, except as provided in CPLR §§ 214-b, 214-c, 214-i and 215; under General Municipal Law § 50-i(1), a personal injury action against a city, county, town, village, fire district or school district must be commenced within one year and ninety days after the event, and a notice of claim must first be served.
Can you sue your employer or a co-worker?
Generally not. Under Workers' Compensation Law § 11, an employer's liability for compensation is exclusive and in place of any other liability to the injured employee, except that if the employer fails to secure the payment of compensation, the injured employee may choose between claiming compensation and suing for damages. Under § 29(6), compensation is also the exclusive remedy when the employee is injured by the negligence or wrong of another person in the same employ.
What happens to your workers' compensation if you sue the other driver?
The workers' compensation carrier has a lien on the recovery from the other driver, after deduction of the reasonable and necessary expenditures, including attorney's fees, incurred in getting it, up to the total compensation and medical expenses paid or to be paid. Under § 29(1-a), however, it has no lien on a recovery under Insurance Law § 5104(a) for compensation and medical benefits it paid in lieu of first party benefits that another insurer would otherwise have had to pay under Article 51 of the Insurance Law; its sole remedy for those payments is the settlement procedure in Insurance Law § 5105. A settlement for less than the compensation provided under the Workers' Compensation Law needs the written approval of the carrier, unless you obtain a compromise order from a justice of the court where the lawsuit is pending. The Workers' Compensation Board's Form C-121, the notice that a third-party action has been started, must be served on the Chair of the Board, the employer and the employer's insurance carrier within 30 days after the action is commenced.
To recover for pain and suffering from the other driver, the serious-injury threshold applies: in an action between covered persons for injuries arising out of negligence in the use or operation of a motor vehicle in New York, there is no recovery for non-economic loss except in the case of a serious injury.
Frequently asked questions
Is a workers' compensation claim filed after two years always barred?
Not always. The employer and insurance carrier are deemed to have waived the two-year bar unless the objection is raised at the first hearing on the claim at which all parties in interest are present.
Does the workers' compensation claim form ask about the vehicle?
Yes. Form C-3 asks whether the injury was the result of the use or operation of a licensed motor vehicle, and its instructions ask you to check whether the vehicle was yours, your employer's or a third party's.
Who pays workers' compensation benefits?
According to the Workers' Compensation Board, weekly cash benefits and medical care are paid by the employer's insurance carrier.
About William Mattar, P.C.
William Mattar, P.C. was founded in 1990 by William K. Mattar in Williamsville, NY, and focuses on motor vehicle accident cases. The initial case consultation is free, and the firm can be reached at (844) 444-4444.
Related reading from William Mattar
Sources
- NYS Insurance Department, Office of General Counsel Opinion No. 03-01-05 (January 3, 2003): https://www.dfs.ny.gov/insurance/ogco2003/rg030105.htm
- New York Insurance Law § 5102: https://www.nysenate.gov/legislation/laws/ISC/5102
- New York Insurance Law § 5104: https://www.nysenate.gov/legislation/laws/ISC/5104
- 11 NYCRR 65-1.1 (Regulation 68, NYS Department of Financial Services): https://www.dfs.ny.gov/system/files/documents/2024/08/reg68_11_nycrr_65_full_txt.pdf
- New York Workers' Compensation Law § 11: https://www.nysenate.gov/legislation/laws/WKC/11
- New York Workers' Compensation Law § 18: https://www.nysenate.gov/legislation/laws/WKC/18
- New York Workers' Compensation Law § 28: https://www.nysenate.gov/legislation/laws/WKC/28
- New York Workers' Compensation Law § 29: https://www.nysenate.gov/legislation/laws/WKC/29
- NYS Workers' Compensation Board, File a Workers' Compensation Claim: https://www.wcb.ny.gov/content/main/Workers/file-claim.jsp
- NYS Workers' Compensation Board, Form C-3: https://www.wcb.ny.gov/content/main/forms/c3.pdf
- NYS Workers' Compensation Board, Form C-121: https://www.wcb.ny.gov/content/main/forms/c121.pdf
- NYS Workers' Compensation Board, What is Workers' Compensation?: https://www.wcb.ny.gov/content/main/Workers/what-is-workers-compensation.jsp
- New York General Municipal Law § 50-i: https://www.nysenate.gov/legislation/laws/GMU/50-I
- CPLR § 214: https://www.nysenate.gov/legislation/laws/CVP/214
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