In New York, construction workers injured on the job can pursue both a workers’ compensation claim AND a third-party personal injury lawsuit — and understanding the difference can mean the difference between receiving basic wage replacement and recovering full compensation for your injuries. Gorayeb & Associates has helped more than 10,000 injured construction workers across New York City navigate both systems to maximize their recovery.
Workers’ compensation covers your immediate medical bills and a portion of your lost wages, but it does not compensate you for pain and suffering, and your weekly benefits are capped. A third-party lawsuit — filed against the property owner, general contractor, or equipment manufacturer responsible for your injury — can recover the full range of damages that workers’ comp leaves on the table. Most construction workers don’t know they have this option, and that lack of knowledge costs them hundreds of thousands of dollars or more.
Key Terms You Should Know
- AWW (Average Weekly Wage): Your average weekly earnings before the injury. Workers’ comp benefits are calculated as two-thirds of your AWW, up to the state maximum.
- SLU (Schedule Loss of Use): A workers’ comp benefit paid when you suffer permanent partial loss of function in a specific body part (arm, leg, hand, foot, eye, ear). The number of weeks is set by statute based on which body part was affected.
- Labor Law §240(1) — The Scaffold Law: Imposes absolute liability on property owners and general contractors when a construction worker is injured by a gravity-related hazard (falls from heights, falling objects). The worker does not need to prove the owner was negligent.
- WCL §18 (30-Day Notice): Workers’ Compensation Law requiring the injured worker to give written notice of the injury to their employer within 30 days of the accident.
- CPLR §214 (3-Year Statute of Limitations): Civil Practice Law and Rules provision requiring a personal injury lawsuit to be filed within three years of the date of injury.
What Is the Difference Between Workers’ Comp and a Third-Party Lawsuit?
Workers’ compensation and third-party lawsuits are two completely separate legal systems, and they work side by side — not as alternatives. Here is what each one does and doesn’t do.
Workers’ Compensation: The Basics
Workers’ comp is a no-fault insurance system. You don’t need to prove anyone was negligent — you just need to show you were injured on the job. Your employer’s workers’ comp insurance pays for:
- Medical treatment related to the injury (doctor visits, surgery, rehabilitation, medication)
- Two-thirds of your average weekly wage (AWW) up to the state maximum of $1,281.50 per week for injuries occurring between July 1, 2026, and June 30, 2027
- Schedule loss of use (SLU) benefits for permanent partial disability to specific body parts
- Death benefits for dependents if the injury is fatal
What workers’ comp does NOT cover: pain and suffering, emotional distress, loss of enjoyment of life, full lost wages (only two-thirds of AWW up to the cap), future earning capacity, or punitive damages. These are the damages that often represent the largest portion of a construction worker’s total losses — and the only way to recover them is through a third-party lawsuit.
Third-Party Personal Injury Lawsuits: The Full Picture
A third-party lawsuit is a personal injury claim filed against someone other than your direct employer. In construction, this typically means the property owner, general contractor, subcontractor, or equipment manufacturer whose negligence caused or contributed to your injury. Under New York Labor Law §240(1) — the Scaffold Law — property owners and general contractors face absolute liability for gravity-related construction injuries. Under §241(6), they are liable for violations of specific Industrial Code safety regulations. Under §200, they are liable when they knew or should have known about a dangerous condition and failed to correct it.
In a third-party lawsuit, you can recover:
- Full lost wages — past and future, without the workers’ comp cap
- Pain and suffering — physical pain, emotional distress, and loss of enjoyment of life
- Future medical expenses — including surgeries, rehabilitation, and long-term care
- Loss of earning capacity — if your injury prevents you from returning to construction work
- Loss of consortium — for your spouse
- Wrongful death damages — if the injury is fatal
Side-by-Side: Workers’ Comp vs. Third-Party Lawsuit
| What It Covers | What It Doesn’t Cover | Who You Sue / File Against | Compensation Cap | |
| Workers’ Comp | Medical bills, 2/3 of AWW (up to $1,281.50/wk), SLU, death benefits | Pain & suffering, full lost wages, future earning capacity, punitive damages | Your employer’s insurance carrier (no lawsuit needed) | Capped at $1,281.50/week for lost wages |
| Third-Party Lawsuit | Full lost wages, pain & suffering, future medical costs, loss of earning capacity, consortium, wrongful death | Workers’ comp benefits (handled separately) | Property owner, GC, subcontractor, equipment manufacturer — NOT your employer | No cap — based on full value of damages |
Deadlines: Workers’ comp requires 30-day written notice to employer (WCL §18) and a claim filed within 2 years (WCL §28). A third-party personal injury lawsuit must be filed within 3 years of the date of injury (CPLR §214).
Can I File Both Workers’ Comp and a Personal Injury Lawsuit?
Yes — and in most construction accident cases, you should. Workers’ comp and a third-party lawsuit serve different purposes and recover different types of damages. Filing one does not prevent you from filing the other. In fact, pursuing both is the only way to recover the full value of your case.
Here is why you need both: Workers’ comp kicks in immediately. It covers your medical bills and provides partial wage replacement from day one. But the maximum weekly benefit of $1,281.50 is a fraction of what many construction workers earn, and it does not compensate you at all for pain and suffering. The third-party lawsuit covers everything workers’ comp leaves out — including the largest categories of damages in a serious construction accident case.
How the Workers’ Comp Lien Works
If you receive workers’ comp benefits and then win a third-party lawsuit, your employer’s workers’ comp insurance carrier has a lien — a legal right to be reimbursed for the benefits it paid out of your third-party recovery. This is called subrogation, and it is governed by Workers’ Compensation Law §29. Your attorney will negotiate the lien to minimize the amount deducted from your third-party recovery. An experienced construction accident lawyer understands how to structure settlements to protect the maximum amount of your recovery from the lien.
Not Sure If You Have a Third-Party Case?
Most injured construction workers qualify for both workers’ comp and a third-party lawsuit — but don’t know it.
Call Gorayeb & Associates at (646) 760-5841 for a free, confidential consultation.
Bilingual staff available. We don’t charge unless we win.
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How Much More Can I Get from a Third-Party Lawsuit?
The difference is often enormous. Workers’ comp pays a fraction of your losses. A third-party lawsuit recovers the full value. Consider these scenarios:
Example 1: Scaffold Collapse
A construction worker falls 20 feet when a scaffold collapses due to improper assembly. He suffers a spinal fracture, requires surgery, and cannot return to construction work. Workers’ comp covers his medical bills and pays up to $1,281.50 per week in lost wages. A third-party lawsuit against the property owner under Labor Law §240(1) recovers an additional $2 million or more for pain and suffering, full lost wages, future medical costs, and loss of earning capacity. The $2 million comes on top of the workers’ comp benefits — minus the lien.
Example 2: Falling Object on a Job Site
A tradesperson working below grade is struck by a steel beam that falls from an upper floor because the general contractor failed to secure materials. She suffers a traumatic brain injury and permanent cognitive impairment. Workers’ comp pays her medical bills and partial wages. A third-party lawsuit under Labor Law §240(1) and §241(6) recovers more than $1 million in additional damages — including pain and suffering and the loss of her ability to earn a living at her prior capacity.
These are not unusual results. In cases involving scaffolding accidents, falls from heights, and falling objects, the third-party recovery typically dwarfs the workers’ comp benefits by a factor of 5 to 20 times.
Common Mistakes That Cost Construction Workers Money
- Not reporting the injury to your employer within 30 days. Under WCL §18, you must give written notice of the injury within 30 days of the accident. Failure to do so can bar your workers’ comp claim entirely — unless the board excuses the delay because your employer already knew about the accident.
- Not knowing you can sue the property owner. Many construction workers believe workers’ comp is the only option. It is not. If a third party — the property owner, general contractor, subcontractor, or equipment manufacturer — contributed to your injury, you can file a separate personal injury lawsuit for full damages.
- Settling workers’ comp without exploring the third-party claim. Some workers accept a workers’ comp settlement without ever consulting a lawyer about whether a third-party claim exists. By the time they realize they had a case, the 3-year statute of limitations may have expired.
- Waiting too long to file. Workers’ comp has a 2-year filing deadline (WCL §28). The third-party lawsuit has a 3-year deadline (CPLR §214). Missing either deadline means losing your right to recover compensation.
- Not preserving evidence. Construction sites change fast. Equipment gets moved, conditions get corrected, witnesses leave the job. The sooner you contact a lawyer, the sooner evidence can be preserved to support both your workers’ comp and third-party claims.
What Are the Deadlines for Filing?
New York law imposes strict deadlines for both workers’ comp and third-party claims:
- Workers’ comp: 30 days to notify your employer in writing (WCL §18). 2 years from the date of the accident to file a claim with the Workers’ Compensation Board (WCL §28).
- Third-party lawsuit: 3 years from the date of injury to file a personal injury lawsuit (CPLR §214). This deadline is not extended by the fact that you are receiving workers’ comp benefits.
- Special note for occupational diseases: If your injury is an occupational disease (such as hearing loss or chemical exposure), the 2-year workers’ comp deadline runs from the date of disablement or the date you knew or should have known the disease was related to your employment (WCL §28). The third-party deadline may be governed by CPLR §214-c (the discovery rule) for toxic exposure injuries.
Talk to Gorayeb & Associates About Your Case
If you were injured on a construction site in New York, you may be entitled to far more compensation than workers’ comp alone can provide. Gorayeb & Associates has recovered over $2 billion for more than 10,000 injured workers over 40+ years of practice. Founded by Christopher J. Gorayeb, the firm has the experience and the track record to pursue both your workers’ comp claim and your third-party lawsuit to maximize your total recovery.
Injured on a Construction Site? You May Have Two Claims.
Gorayeb & Associates — 40+ years, $2B+ recovered, 10,000+ clients.
Free consultation. Bilingual staff. No fees unless we win.
Call (646) 760-5841 or contact us online.
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Frequently Asked Questions
What is workers’ comp vs. a third-party lawsuit?
Workers’ compensation is a no-fault insurance system that pays medical bills and partial lost wages regardless of who caused your injury. A third-party lawsuit is a personal injury claim filed against someone other than your employer — such as the property owner, general contractor, or equipment manufacturer — to recover damages that workers’ comp does not cover, including pain and suffering, full lost wages, and future medical costs.
Can I file both at the same time?
Yes. Workers’ comp and a third-party lawsuit are separate legal processes and can be pursued simultaneously. Filing one does not prevent you from filing the other. In most construction accident cases, pursuing both is the only way to recover the full value of your losses.
Who can I sue in a third-party construction accident lawsuit?
You can sue property owners, general contractors, subcontractors, equipment manufacturers, and other third parties whose negligence contributed to your injury. You cannot sue your direct employer in a third-party lawsuit — workers’ comp is your exclusive remedy against them. Under Labor Law §240(1), property owners and general contractors face absolute liability for gravity-related injuries. Under §241(6), they are liable for Industrial Code violations.
How much is my construction accident case worth?
The value depends on the severity of your injuries, the impact on your earning capacity, the cost of future medical care, and the number of responsible parties. Workers’ comp alone is capped at $1,281.50 per week for lost wages (as of July 2026). A third-party lawsuit has no cap and can recover significantly more — including pain and suffering, which often represents the largest component of a construction accident recovery. Cases involving falls, scaffold collapses, and falling objects routinely result in third-party recoveries exceeding $1 million.
What happens to my workers’ comp if I win a third-party lawsuit?
Your employer’s workers’ comp insurance carrier has a lien (a legal right to reimbursement) on your third-party recovery under WCL §29. This means a portion of your third-party settlement or verdict may be used to reimburse the workers’ comp carrier for the benefits it already paid. Your attorney can negotiate the lien to minimize the deduction and protect the maximum amount of your recovery.
