When Lazarus Jackson drove his truck to the Bronx in March 2015, like any other day, he hopped into the back to help the restaurant workers unload the food delivery.
Except this wasn’t an ordinary morning. Ice had accumulated inside the trailer. Interior lights should have been installed by his fast food delivery employer, but the company gave him a flashlight instead.
“Bam! I fell backward onto two feet of ice,” said Jackson, 39. “Ice was supposed to be melted by the company’s factory loaders every morning before a driver left the loading dock. Instead, pallets had been stacked on top of the ice.”
Jackson’s head hit a metal guard rail inside the trailer, resulting in a serious concussion. Within three weeks, he was placed on disability, receiving workers’ compensation for almost $800 weekly from his employer’s insurance company. He would never get behind the wheel for that job again, and while he received an out-of-court settlement of six figures for industry violations, the effects of his injury still linger.
“I was going to physical therapy once a week because I couldn’t even drive. I still can’t,” said Jackson, who’s now working as the editor in chief of Modern Home Safety. “My balance wasn’t the same as before I fell in the truck. Other days I spoke to therapists about my depression and anxiety attacks.”
Workers’ compensation insurance is mandatory and paid by employers in every state except Texas, covering employees for personal injuries that happen at work. Typically, you can’t sue your employer and collect workers’ comp for the same injury, although in some instances it may be possible.
According to the Bureau of Labor Statistics, employers reported 2.7 million nonfatal workplace injuries and illnesses and 4,764 fatal workplace injuries in 2020. Workplace safety issues frequently make headlines. In Mayfield, Ky., candle factory workers are filing a class-action lawsuit against their employer for allegedly saying they would be terminated if they fled for safety during a deadly tornado. In New Mexico, there’s the case of cinematographer Halyna Hutchins, who was fatally shot while on a film set during a rehearsal in the infamous incident involving Alec Baldwin.
Some work-related injuries are preventable. As the mantra goes: If you see something, say something — whether to HR, your supervisor, office manager or even the company owner. And make sure to document it.
“An employee should always notify the employer of an unsafe working condition,” said Midtown attorney Albert Rizzo. “First, because it’s the right thing to do. Second, because the condition may be a violation of Occupational Safety and Health Act standards, which requires employers to maintain a safe and healthy work environment. Once reported, the employee shouldn’t fear repercussions, because OSHA prohibits retaliation.”
Charles H. Fleischer, Esq., from Bethesda, MD-based law firm Oppenheimer, Fleischer & Quiggle and author of “The SHRM Essential Guide to Employment Law” (Society for Human Resource Management), recommended turning to OSHA if speaking to your employer doesn’t yield results. “Many states have their own laws governing workplace health and safety, so the employee could [also] file with the labor department in the state where he/she works,” he said.
Daniela Sawyer, 31, interned at a Midtown software company in 2019, where the office’s faulty elevators frequently stalled and otherwise malfunctioned. She told her boss that “early action would be appreciated.”
Sawyer’s boss assured her the elevators would be fixed the following day, but when she later took the elevator it suddenly stopped. She called her colleagues, who told her it might take an hour or two before she could be rescued.
“Initially, I waited patiently,” she said. “But over time, I grew anxious. I’m asthmatic, I got out of breath, and my inhaler was on the office table.”
Moments later, she had an asthma attack and passed out before being rescued by the FDNY. “For as long as I remember, that’s the last moment I was in my office,” she said. “I woke up in the hospital.”
After the harrowing experience, Sawyer confronted her boss. “He was so careless … like, ‘That’s none of my business.’ That made me disappointed. I immediately quit the internship.”
According to New York law, full- and part-time workers and paid and unpaid interns are eligible for workers’ comp. Independent contractors and freelancers, however, are not.
“Truly independent contractors are not protected by OSHA regulations,” said Rizzo. “However, if they are injured as a result of an unsafe working condition, they may have recourse against a business owner for negligence.”
Injuries that occur on the premises of the employer while the employee is working are covered under workers’ compensation law.
“Benefits typically include medical expenses and, if the employee is unable to work, payments in lieu of salary,” said Fleischer. “State law specifies the amount of payments depending on whether the employee is completely or partially unable to work, and whether the employee’s disability is permanent.”
The process involves collecting proper documentation.
“Once it’s reported, the employer should provide the paperwork for the employee to file the claim,” said Rizzo. This requires medical evidence regarding the nature and extent of the injury. “If the injury is not covered by worker’s compensation, the employee should consult with an attorney to see if there’s recourse, like filing a lawsuit for negligence.”
Severe stress may also be covered by workers’ compensation in New York, but it may be hard to prove, especially if it is emotional stress.
“At some point the case will be closed,” said Rizzo. “Either the employee will be found to have a continuing injury for which benefits will continue, or, they will determine that the employee is no longer entitled to benefits either because they will pay out a fixed sum or the injury has been cured. The employee does not need to check in with HR so long as the case is still open. However, this is not a ‘leave’ benefit,” — that is, an employer paying for the duration of the time off.
State workers’ compensation laws differ across the country, though are similar.
“If the employer is located in Connecticut and the employee usually works in Connecticut, Connecticut law should govern, regardless of where the employee lives and regardless of where the injury occurred,” said Schneider.
Above all, safety is a universal right. “Employers have a legal obligation to provide a safe workplace for their employees,” said Schneider.
Sawyer agreed. “You don’t want to work in a place where people don’t respect your health and your feelings,” she said. “You don’t have to negotiate with them either. Employees’ welfare is all that employers should care about.”
For more information on New York State workers compensation, go to WCB.NY.gov
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