Construction Site Injuries And The Uninsured Employer

Workers Compensation Law 11 states in pertinent part that the liability of an employer shall be exclusive and in place of any other liability whatsoever, to such employee on account of such injury or liability arising therefrom, except that if an employer fails to secure the payment of compensation for his injured employees, an injured employee, may, at his option, elect to claim compensation under this chapter, or to maintain an action in the courts for damages on account of such injury.

WCL 110 (1) states in pertinent part that an employer shall record any injury incurred by one of its employees in the course of employment using the form prescribed for reporting injuries, a copy of which shall be provided to the injured employee. WCL 110 (2) states in pertinent part that an employer shall file with the chair of the workers’ compensation board and with the carrier if the employer is insured, a report of any accident resulting in personal injury which has caused or will cause a loss of time from regular duties of one day beyond the working day or which has required or will require medical treatment beyond ordinary first aid. WCL 110 (4) states that an employer who refuses or neglects to make a report or to keep records as required by this section shall be guilty of a misdemeanor. W.C.L. 52 states in pertinent part that the failure to secure the payment of compensation for five or less employees within a twelve month period shall constitute a misdemeanor and the failure to secure the payment of compensation for more than five employees within a twelve month period shall constitute a class E felony. The Courts have recognized that one of the purposes of the law is to assist in assuring payment of any and every award to an injured employee. These construction companies who do not carry workers compensation insurance or refuse to provide the insurance information to the injured employee have engaged in criminal activity by having workers perform construction, an inherently dangerous occupation, in New York without having New York Workers Compensation coverage Additionally, it would subvert the public policies of the workers compensation laws to permit the defendant to assert a defense based upon workers compensation, which he failed to provide.

Where an injured worker has had to bear the hardships of an uninsured work accident with serious injuries it is fundamentally unfair and prejudicial to allow the defendant to assert the defense of an exclusive remedy.