"Elevation Injuries" Exception to Workers' Compensation Bar in New York.

What is the Scaffold Law?

New York’s Scaffold Law (Labor Law § 240) imposes a liability for damages to workers injured as ar result of an “elevation related hazard” during the course of employment in the building trades. This Law allows workers to sue their employer for injuries arising out of and in the course of employment when the injury arises from a fall from height or something falling onto the worker. These claims are not barred by the Workers’ Compensation Act.

The interplay between Scaffold Law cases and Workers’ Compensation.

Under the New York Workers’ Compensation Law, an employer is immune for suit from an employee except for four specific circumstances:

  1. The employer is uninsured;
  2. the injury to the employee is intentional;
  3. where the employee sustains “grave injury;” and
  4. Scaffold Law claims.

Uninsured employers.

The employer’s failure to maintain coverage permits the employee the option either to sue for the damages sustained as a result of the injury, or to seek the benefits provided under the Workers’ Compensation Law.

Intentional injuries.

Intentional injuries are not compensable in New York. “intentional” includes injuries where the employer intentionally harmed an employee or where the employee intentionally harmed himself. For a recent discussion of suicide in the workplace and the application of the “intentional” bar, see my discussion of the recent Veeder case.

“Grave Injury.”

“Grave injury” is defined by WCL §11 as:

one or more of the following: death, permanent and total loss of use or amputation of an arm, leg, hand or foot, loss of multiple fingers, loss of multiple toes, paraplegia or quadriplegia, total and permanent blindness, total and permanent deafness, loss of nose, loss of ear, permanent and severe facial disfigurement, loss of an index finger or an acquired injury to the brain caused by an external physical force resulting in permanent total disability.

If there has been a “grave injury” of the type described by §11, the employer may be liable for contribution or indemnity in a third-party claim (civil claim).

Scaffold Law claims.

The Scaffold law specifically states that it applies to

All contractors and owners and their agents . . . in the erection, demolition, repairing, altering, painting, cleaning or pointing of a building or structure.

Case law has made it clear that even “inspecting” a work site, if the inspection was incidental to the actual work tasks being performed there, could bring a worker under the Scaffold Act.

Plainitff’s Proofs in a Scaffold Claim.

To prevail in such a claim, which pierces the immunity offered employers under the Workers’ Compensation Law (NY WKC) the plaintiff must show

he was subjected to an elevation-related risk which the statute was designed to obviate and that there was a causal connection between a violation of the statute and the injury sustained.

Failure to provide safety devices to prevent falls is prime facie evidence of violation and the strict liability standard will apply. See Zimmer v. Performing Arts, 65 N.Y.2d 513 (1985).

Defending Scaffold Law claims.

To defend these claims, most employers have seperate law firms representing them in the workers’ compensation case and the Labor Law case. Meanwhile, the claimant in both cases is the same, and uses the workers’ compensation claim to “fund” and prepare the civil action, usually by seeking unecessary medical care and seeking to extend time lost from work in order to “build up” the third-party (civil) claim.

Coordination between the defense counsel defending the workers’ compensation claim and the civil claim can be an enormous advantage in defending these claims. However, there is no collateral estoppel effect to decision in the workers’ compensation court unless the issues and proofs are shown to be identical (see Aqui v Seven Thirty One Limited and the Court of Appeals decision of December 13, 2013).

For large self-insured employers and construction entities with choice of counsel, coordination between counsel in the workers’ compensation the civil proceedings is recommended.

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Greg Lois is the managing partner of LOIS LLC, a 21-attorney law firm dedicated to defending employers and carriers in New York and New Jersey workers' compensation claims. Greg is the author of a popular series of "Handbooks" on workers' compensation, and is the co-author of the 2016 & 2017 Lexis-Nexis New Jersey Workers' Compensation Practice Guide. Greg can be reached at 201-880-7213 or glois@lois-llc.com