Two broken legs from a fall down stairs at work: the comp claim and the claim comp does not cover

Attorney Answer

There are two separate claims here, and most injured workers only ever hear about one. The workers' compensation claim is against your employer and runs on its own short clocks. A third-party claim — against a building owner, a property manager, a contractor or anyone else responsible for that staircase who is not your employer — is a different case with a different deadline, and two broken legs makes it worth asking about rather than assuming compensation is the end of it.

Take the compensation claim first, because its deadlines are the shortest. Workers' Compensation Law § 18 requires written notice of an injury to be given to the employer within thirty days after the accident, stating the injured person's name and address and, in ordinary language, the time, place, nature and cause of the injury. The statute also lets the Workers' Compensation Board excuse a failure to give that notice in stated circumstances, including where the employer already had knowledge of the accident or has not been prejudiced. Section 28 is the claim clock: the right to claim compensation is barred unless a claim is filed with the chairman within two years after the accident, subject to the exceptions that section states.

The compensation system is generally the exclusive route against an employer — it pays without regard to fault and in exchange displaces most negligence claims against the employer. It does not displace a claim against anyone else. If the staircase was in a building your employer does not own, or was maintained by a management company, or had been worked on by a contractor, that party is not your employer and is not protected by that exclusivity.

A third-party claim runs on CPLR 214, which gives three years for "an action to recover damages for a personal injury except as provided in sections 214-b, 214-c, 214-i and 215," from the date of the fall. If the fall happened where construction, excavation or demolition work was being performed, Labor Law § 241(6) may also apply. It requires that "All areas in which construction, excavation or demolition work is being performed shall be so constructed, shored, equipped, guarded, arranged, operated and conducted as to provide reasonable and adequate protection and safety to the persons employed therein or lawfully frequenting such places" — and it carries an exception for owners of one- and two-family dwellings who contract for but do not direct or control the work. On fault, CPLR 1411(a) applies: "Except as provided in subsection (b) of this section, in any action to recover damages for personal injury, injury to property, or wrongful death, the culpable conduct attributable to the claimant or to the decedent, including contributory negligence or assumption of risk, shall not bar recovery. The amount of damages otherwise recoverable shall be diminished in the proportion which the culpable conduct attributable to the claimant or decedent bears to the culpable conduct which caused the damages."

One caution: where benefits have been paid and a third-party recovery follows, the compensation carrier generally has an interest in that recovery, and the two cases have to be coordinated. That is a reason to have both handled together from the start, not a reason to skip the second claim.

What you can do

1. Give your employer written notice of the injury now if you have not already, and keep a dated copy of exactly what you sent.

2. Have your treatment documented as work-related from the first visit, and keep every record and bill.

3. Photograph the staircase — the treads, the handrail, the lighting, any water, wear or missing nosing — before anything is repaired, or ask someone to do it for you.

4. Find out who owns and who maintains that building and that staircase, and whether any contractor had recently worked on it.

5. Write down the names of anyone who saw the fall or who had complained about those stairs before.

6. Ask for any incident report your employer or the building prepared, in writing.

7. Have a New York attorney look at both tracks together, because they interact and the deadlines differ.

⏱ Time limits apply. Workers' Compensation Law § 18 sets thirty days from the accident to give the employer written notice, and § 28 bars a compensation claim not filed with the chairman within two years of the accident, both subject to the exceptions those sections state. A third-party claim runs on CPLR 214's three years from the date of the fall, and far shorter periods apply if a public corporation owns the building — General Municipal Law §§ 50-e(1)(a) and 50-i(1)(c). Which deadlines are yours depends on your facts, and no date is calculated here. Have a New York attorney confirm them promptly.