Q: In the boiler room of the hotel where I worked, I hit my head on a pipe.  When I told the owner's wife that I needed to seek medical help, she told me, "No, no, back to work."  Shortly thereafter, I made a claim for workers' compensation benefits, and right after that I was fired.

 The Workers' Compensation Board found that my firing was retaliatory.  Once reinstated to my job, I asked for an award of damages, in the form of back pay for the intervening three years, in addition to attorney fees.

After a very long delay, a Workers' Compensation Law Judge held a hearing and granted my request.  The award also included thousands of dollars in interest from the dates my wages should have been paid, to the date of the damages hearing.  Now, my employer is saying that this award of interest was not authorized by statute.

A: Under section 120 of the Workers' Compensation Law, it certainly was unlawful for your employer to discharge or discriminate because you had made a claim for benefits.  The Board did well to restore you to employment and to grant back pay and attorney fees.

Ordinarily, in a workers' compensation case, pre-decision interest is not recoverable.  Most of the provisions of the W.C. Law are designed to provide specified money allowances – not to make you ‘whole’.  Ordinarily, a claimant is entitled only to interest that accumulates after the decision.

But claims based on retaliatory discharge or other forms of discrimination are deemed to be on a pedestal.  There, the compensation may indeed include pre-decision interest: when it comes to discrimination, even though the Legislature did not specify the components of a back pay award, the Legislature wanted you to be made whole.

By: Scott Baron,
Attorney at Law Advertorial

The law responds to changed conditions; exceptions and variations abound. Here, the information is general; always seek out competent counsel. This article shall not be construed as legal advice.

Copyright © 2012-2020 Scott Baron & Associates, P.C. All rights reserved. 159-49 Cross Bay Boulevard, Howard Beach, New York 11414 1750 Central Park Ave, Yonkers, NY 10710 718-738-9800, 914-337-9800, 1-866-927-4878

Q: In a garage renovation project, my job was to chip-off the concrete from an exposed and elevated steel beam.  Someone called my name.  I lost my balance and fell onto the concrete floor below.  What are my chances under the Labor Law?  In Workers’ Comp?

A: Everything depends on details that you have not told me.  How had you been directed to mount?  If you were directed by the owner, from a ladder and without a safety device, then your case under the Labor Law looks good.

If you had been provided with a motorized scaffold from which all sections of the beam could be reached, and you had no reason to mount the beam, and you were never ordered to climb onto the beam, then your case looks poor.

If you had been joking around on the day of the accident and had been dancing and fooling around on the beams, or if you were trying to walk from one side of the garage to the other, rather than working, when you fell, then your case collapses.

Did the owner give that order, or did your supervisor?  If your employer is the only entity that was involved with the work, then any remedy most likely arises under the Workers' Compensation Law.  Your attorney must have all the details.

By: Scott Baron,
Attorney at Law Advertorial

The law responds to changed conditions; exceptions and variations abound. Here, the information is general; always seek out competent counsel. This article shall not be construed as legal advice.

Copyright © 2012-2020 Scott Baron & Associates, P.C. All rights reserved. 159-49 Cross Bay Boulevard, Howard Beach, New York 11414 1750 Central Park Ave, Yonkers, NY 10710 718-738-9800, 914-337-9800, 1-866-927-4878

Q: While attempting to lift a frame and cover onto a truck, and working, I was injured.  I would like to sue the corporation that owns the property for common-law negligence and for various Labor Law violations.  Both the owner and my employer are owned by Mr. X.

A: In your complaint, you will allege that the owner was negligent in failing to provide a safe place to work, in failing to provide adequate and proper lifting and hoisting equipment, and in instructing you to accomplish a task that was unsafe and dangerous.

True, section 29(6) of the Workers' Compensation Law provides that workers' compensation is the exclusive remedy for an employee injured by the negligence or wrong of another in the same employ.  The owner, however, is a corporation separate and distinct from your employer.

Your attorney will argue that where, as here, the employer and the owner are distinct legal entities, there is no basis to dismiss an action against the landowner based on the exclusivity provisions of the Workers' Compensation Law.

Mr. X, as the individual principal in this business enterprise, for his own business and legal advantage, elected to operate that enterprise through separate corporate entities.  The structure he created should not be ignored – in order to shield one tentacle of his octopus from common-law tort liability.

By: Scott Baron,
Attorney at Law Advertorial

The law responds to changed conditions; exceptions and variations abound. Here, the information is general; always seek out competent counsel. This article shall not be construed as legal advice.

Copyright © 2012-2020 Scott Baron & Associates, P.C. All rights reserved. 159-49 Cross Bay Boulevard, Howard Beach, New York 11414 1750 Central Park Ave, Yonkers, NY 10710 718-738-9800, 914-337-9800, 1-866-927-4878

Q: My vehicle collided with another, and my wife and I commenced an action to recover damages for personal injuries against the other driver.  During discovery, we learned that the other driver was working at the time of the accident and even received workers' compensation benefits for his injuries.

“Deep pocket!” we cried, and named his employer as an additional defendant.  Obviously, the employer should be held vicariously liable for the driver's actions, since the Workers' Compensation Board had already determined that an employer-employee relationship existed between the driver and the employer on that date.

A: Not so fast.  Our courts will rule that the determination of the WCB must have been based on the consideration it deemed most appropriate – sufficient ‘control’ to establish an employer/employee relationship for the purposes of the Workers’ Comp Law.

However, the WCB’s determination is not entitled to preclusive effect with respect to the issue of whether the employer was vicariously liable for the driver's actions on the day of the accident.  You will have to prove on your own that the driver was operating the vehicle during the course of his employment.  You may well be able to prove it; it’s just that you won’t get a free ride based upon the WCB decision.

By: Scott Baron,
Attorney at Law Advertorial

The law responds to changed conditions; exceptions and variations abound. Here, the information is general; always seek out competent counsel. This article shall not be construed as legal advice.

Copyright © 2012-2020 Scott Baron & Associates, P.C. All rights reserved. 159-49 Cross Bay Boulevard, Howard Beach, New York 11414 1750 Central Park Ave, Yonkers, NY 10710 718-738-9800, 914-337-9800, 1-866-927-4878

Q: My son was abandoned by his mother shortly after birth, and afterwards they had contact on only two brief occasions.  In addition to providing no emotional or nurturing support, the mother failed to provide financial support.  Despite economic obstacles, I raised our son alone.

Tragically, my son’s life was taken when he perished while at work.  My son was unmarried and had no dependents.  I filed a claim for the death benefit provided by Workers' Compensation Law §16 (4-b).  You guessed it: his mother has reappeared out of the woodwork and intervened in the claim, seeking one half of the benefit.

A: I am afraid that the Workers' Compensation Board has interpreted the term ‘parent’ in § 16 (4-b) as meaning simply the biological father and mother of a child and that the courts have agreed.  Unless the mother's parental rights were terminated pursuant to the Social Services Law or you have grounds for getting her share cut by the Family Court, the mother gets half.

Parents who fail to provide for or who abandon their child are expressly disqualified by statute from inheriting from a child who dies intestate and from receiving the proceeds of an action for the wrongful death of the child.  However, the Legislature has provided no comparable exclusion in the Workers' Compensation Law.  Our courts have reasoned that this omission is an indication that no such exclusion was intended.

By: Scott Baron,
Attorney at Law Advertorial

The law responds to changed conditions; exceptions and variations abound. Here, the information is general; always seek out competent counsel. This article shall not be construed as legal advice.

Copyright © 2012-2020 Scott Baron & Associates, P.C. All rights reserved. 159-49 Cross Bay Boulevard, Howard Beach, New York 11414 1750 Central Park Ave, Yonkers, NY 10710 718-738-9800, 914-337-9800, 1-866-927-4878

Q: Because my husband had a heart condition, his employer arranged for him to park in a parking lot directly across the street from the office so that he could avoid walking a long distance.  One morning, after parking his car, while walking across the street to get to the office, my husband was struck by a truck.

Afterwards, I filed a claim for workers' compensation benefits on his behalf as well as a claim for workers' compensation death benefits.  The Workers' Compensation Board ruled that the accident did not arise ‘out of and in the course of’ my husband’s employment – and so no benefits.

A: To be compensable under the Workers' Compensation Law, an employee's injury and resulting death must arise ‘out of and in the course of’ his or her employment.  Generally, accidents occurring on the public highway, away from the place of employment and outside regular working hours, do not qualify.

Here, the risk of being struck by vehicular traffic in this location was shared by the public in general and was not specific to this place of employment.  Furthermore, you do not indicate that the route your husband traveled to cross the street was a route controlled, endorsed or anticipated by the employer or was otherwise associated with access to his workplace.  Unless there is something that you have not told me, the courts will agree that this was not a work-related accident.

By: Scott Baron,
Attorney at Law Advertorial

The law responds to changed conditions; exceptions and variations abound. Here, the information is general; always seek out competent counsel. This article shall not be construed as legal advice.

Copyright © 2012-2020 Scott Baron & Associates, P.C. All rights reserved. 159-49 Cross Bay Boulevard, Howard Beach, New York 11414 1750 Central Park Ave, Yonkers, NY 10710 718-738-9800, 914-337-9800, 1-866-927-4878

Q: Every day, I would walk the few blocks from my home to my employment as an elementary school teacher.  The district's premises include both the elementary school and a middle school located adjacent to each other with a small park separating the two buildings.  One day in winter, while walking to work, I slipped and fell on an icy sidewalk located in front of the middle school a stone’s throw from the entrance to the elementary school.

School meetings were sometimes held on that sidewalk, and the district considered children involved in altercations at that location to be fighting on school property.  In addition, the district maintained that sidewalk, just like any other property owner.  The district even included this same sidewalk as part of the area where it banned smoking on school property and insisted that employees cross the street to smoke.

A: The Workers' Compensation Board is likely to find that your injuries arose out of and in the course of your employment.  While on an employer’s premises, going to or coming from work is generally considered an incident of the employment.  It appears that you fell on the district's premises.  Thus, your accident arose out of and in the course of your employment.

By: Scott Baron,
Attorney at Law Advertorial

The law responds to changed conditions; exceptions and variations abound. Here, the information is general; always seek out competent counsel. This article shall not be construed as legal advice.

Copyright © 2012-2020 Scott Baron & Associates, P.C. All rights reserved. 159-49 Cross Bay Boulevard, Howard Beach, New York 11414 1750 Central Park Ave, Yonkers, NY 10710 718-738-9800, 914-337-9800, 1-866-927-4878

Q: I am an experienced sheet metal mechanic and was recruited and hired by an agency to work at a manufacturer, pursuant to a purchase order agreement between the agency and the manufacturer.

The agency provided my paycheck, carried workers' compensation, liability and unemployment insurance, and withheld Social Security, but only the manufacturer could terminate my assignment to its facility.  The agency was precluded from substituting, reassigning or removing personnel selected by and assigned to work at the manufacturer.  The manufacturer also had the right to hire agency employees, on a direct basis and without the agency's consent, subject to insignificant limitations.

I reported only to the manufacturer’s supervisor, who regularly directed, instructed, assigned, supervised and controlled my work duties.  One day, I injured myself.  Afterwards I collected workers’ compensation benefits funded by the agency.  Can I sue the manufacturer?

A: A general employee of one employer may also be in the special employ of another, notwithstanding the general employer's responsibility for payment of wages and for maintaining workers' compensation and other employee benefits.  A special employee is someone who is transferred for a limited time to the service of another.

It sounds like you were the manufacturer's special employee.  Therefore, the receipt of workers' compensation benefits is your exclusive remedy, and you are barred, under sections 11 and 29(6) of the Workers' Compensation Law, from bringing a negligence action against the manufacturer.

By: Scott Baron,
Attorney at Law Advertorial

The law responds to changed conditions; exceptions and variations abound. Here, the information is general; always seek out competent counsel. This article shall not be construed as legal advice.

Copyright © 2012-2020 Scott Baron & Associates, P.C. All rights reserved. 159-49 Cross Bay Boulevard, Howard Beach, New York 11414 1750 Central Park Ave, Yonkers, NY 10710 718-738-9800, 914-337-9800, 1-866-927-4878

Q: The temporary agency assigned me to work in a client’s kitchen, and I reported for work.  The client handed me a food service uniform and directed me to my kitchen work station.  On my second day, upon the kitchen floor, there was a wet, greasy substance.  I slipped.

Who is my employer for the purposes of Worker’s Compensation?

A: Quite possibly, the client would prefer to be considered your employer in order to confine you to Worker’s Compensation and thus wriggle out of an ordinary negligence action.  The client will claim that it was your ‘special employer’.

However, nothing you say permits the inference that the client assumed control over the manner, details and ultimate result of your work.  Assuming that you are experienced, the client probably sought your services precisely because it did not wish to have to supervise the manner, details and ultimate result.

Being told what job to do does not suffice to demonstrate the existence of a ‘special employment’ relation: independent contractors and their employees are routinely instructed as to what they should do by those purchasing their services, but do not therefore become the purchasers' employees.

By: Scott Baron,
Attorney at Law Advertorial

The law responds to changed conditions; exceptions and variations abound. Here, the information is general; always seek out competent counsel. This article shall not be construed as legal advice.

Copyright © 2012-2020 Scott Baron & Associates, P.C. All rights reserved. 159-49 Cross Bay Boulevard, Howard Beach, New York 11414 1750 Central Park Ave, Yonkers, NY 10710 718-738-9800, 914-337-9800, 1-866-927-4878

Q: Inside the stockroom of a store, I was using a scissor lift to install a new paging system.  After finishing, I removed the lift from the stockroom.  Then I realized that I had left my tool pouch hanging from a pipe and went to retrieve it, using a store ladder inside the stockroom.  It had been left to my discretion whether to use a ladder or lift, depending on the height of the work, and this ladder was high enough for me to retrieve the pouch.

 I decided to use that ladder rather than the lift because I had already damaged the stockroom door with the lift.  In addition, it takes 40 minutes to move the lift in and out of the stock room, and I was under pressure to complete other tasks.  I could have gotten my employer’s ladder from a storage container outside the store, but it would have taken half an hour to have a security guard assist me.

Unfortunately, once I had climbed up, the store’s ladder kicked out from under me, causing me to fall to the floor.

A: You have a viable action under Labor Law § 240(1), which basically requires contractors and non-home owners to furnish devices that will protect all workers against elevation-related risks.  The defendants are rendered absolutely liable without regard to your care or lack of it.

Your lawyer will remind the court that – even if it might have been a better choice to use your employer’s ladder, or to use the store’s ladder in a better way, or to re-use the lift – negligence is beside the point in a section 240(1) action.   

By: Scott Baron,
Attorney at Law Advertorial

The law responds to changed conditions; exceptions and variations abound. Here, the information is general; always seek out competent counsel. This article shall not be construed as legal advice.

Copyright © 2014-2020 Scott Baron & Associates, P.C. All rights reserved. 159-49 Cross Bay Boulevard, Howard Beach, New York 11414 1750 Central Park Ave, Yonkers, NY 10710 718-738-9800, 914-337-9800, 1-866-927-4878

Q: At a construction site, I fell from my employer’s A-frame ladder – while descending six feet, from an upper level to a lower level.  The ladder was unsecured.  It was leaning against the wall, in a closed position.  Although there was also a concrete staircase located near the ladder, I had never been instructed to use the one rather than the other.  Is the accident my own fault, for failing to open and secure the ladder?

A: Not under New York Labor Law § 240(1), which basically requires contractors and non-home owners to furnish devices that will protect all workers against elevation-related risks.

Your lawyer will remind the court that this statute is ‘self-executing’.  It is mandatory in its nature and imposes absolute liability for any injury arising from its breach.  For breach of the statute, absolutely imposed, the owner and contractor are rendered liable without regard to anyone’s care or lack of it.

He or she will argue that the only question left for the jury is whether either the absence of an open, properly secured ladder or the absence of an instruction to use only the staircase was a contributing cause of your injury.  From what you have told me, to recover under the statute, you need only prove that you were injured when the unsecured, closed A-frame ladder fell backwards as you descended it.

By: Scott Baron,
Attorney at Law Advertorial

The law responds to changed conditions; exceptions and variations abound. Here, the information is general; always seek out competent counsel. This article shall not be construed as legal advice.

Copyright © 2014-2020 Scott Baron & Associates, P.C. All rights reserved. 159-49 Cross Bay Boulevard, Howard Beach, New York 11414 1750 Central Park Ave, Yonkers, NY 10710 718-738-9800, 914-337-9800, 1-866-927-4878

Q: One day, in my work as a deliveryman, I stopped at a yellow house that was frequently on my route.  Five months earlier, a contractor had renovated the driveway.  The old one consisted of cement; the new one, of yellow-colored cobblestones.

Stepping from the roadway to the driveway, I tripped and fell – knocking against a yellow wooden lamp post, which supported a heavy yellow iron lantern.  The post was merely planted in the ground, instead of anchored by concrete, and so the lantern tumbled from its perch, onto me.

Afterwards, we went back and measured the lip of the driveway.  It is three inches higher than the gutter line.  Generally speaking, the difference in this neighborhood is little more than an inch and a half.

Can I sue the contractor who put in the driveway?  What about the one who put in the lamp post?

A: In failing to exercise reasonable care in the performance of its duties, each of these contractors launched a ‘force or instrument of harm’.  One actively caused the lip of the driveway to become a hazardous condition, by making it too high.  The other was negligent in installing so heavy a lantern, without better making sure of its support.

By: Scott Baron,
Attorney at Law Advertorial

The law responds to changed conditions; exceptions and variations abound. Here, the information is general; always seek out competent counsel. This article shall not be construed as legal advice.

Copyright © 2014-2020 Scott Baron & Associates, P.C. All rights reserved. 159-49 Cross Bay Boulevard, Howard Beach, New York 11414 1750 Central Park Ave, Yonkers, NY 10710 718-738-9800, 914-337-9800, 1-866-927-4878