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Looking at the workers’ compensation exclusivity rule, P.2

On behalf of Licatesi Law Group, LLP on Monday, October 17, 2016.

In our previous post, we began speaking about the workers’ compensation exclusive remedy rule and mentioned that New York law does recognize a couple exceptions to rule. One exception is when the employer fails to secure or maintain workers’ compensation insurance. Another exception is when there is intentional injury on the part of the employer.

Intentional injury refers to situations where the employee’s injury results from an intentional tort committed by, or with the approval of, the employer. In such cases, the employer’s actions are deliberate and intentional, and not merely negligent or reckless. The employer, to take advantage of the exception, must be able to show that there were specific acts intended to harm the employee. Also, the mere fact that the employer knew there was a risk of the employee becoming injured is not enough. Again, the action must be intentionally directed at the employee.

In such cases, the injured worker would be able to sue the employer for battery, assault, false imprisonment, intentional infliction of emotional distress, conversion, or whatever cause of action suits the circumstances of the case.

Another point worth noting is that employers who are injured by the actions of coworkers are able to sue a worker for compensation in a court of law, as well as collect workers’ compensation from the employer. In such cases, though, the employer does have the ability to offset those workers’ compensation costs by putting a lien on any judgment won in the injured worker’s lawsuit.

Those who are injured on the job should, of course, always work with an experienced attorney to ensure they seek out every form of compensation available to them. In cases where they are able to sue their employer and/or a coworker, a zealous advocacy will help ensure everything is done to maximize an injured worker’s compensation.

Source: McKinney’s Workers’ Compensation Law § 11: Alternative remedy, Jan. 1, 2009.

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