What to Do When a Construction Accident Claim Is Denied in New York

A construction accident claim in New York is usually denied for one of a few reasons: you reported the injury late, the insurer disputes that you were an employee, or it argues your injury was not work-related. A denial is not the end of your case. It is a procedural step called "controverting" the claim, and it can be appealed. Just as important, a denied workers' compensation claim does not touch a separate third-party lawsuit you may have against a property owner or general contractor.

That last point is where injured workers lose the most ground. Many people hear "claim denied" and assume they have no case at all. In reality, two entirely different claims can be in play after a construction accident, and they get denied for entirely different reasons.

The first is your workers' compensation claim, filed against your employer's insurance carrier. The second is a possible third-party personal injury lawsuit, filed against a negligent property owner, general contractor, or subcontractor under New York's Labor Law. Keeping these two tracks straight is the difference between walking away and recovering full compensation. Deadlines drive almost everything in both, so understanding them early matters.

Why a Construction Accident Claim Gets Denied (Controverted) in New York

When an insurance carrier formally denies a workers' compensation claim, the legal term is "controverting" the claim. The carrier files a form (a FROI-04 or SROI-04) with the New York State Workers' Compensation Board stating that it disputes the claim and why. This is a routine step, not a final judgment. According to the Workers' Compensation Board, a controverted claim goes to a hearing where a judge decides the disputed issues.

The reasons carriers actually rely on are narrower than most people expect:

• Late notice of injury. Under Workers' Compensation Law § 18, you must notify your employer of a work injury within 30 days. Miss that window and the carrier may argue the claim is barred. The law allows exceptions, though. Late notice can be excused if the employer already had actual knowledge of the accident, if notice could not have been given for sufficient reason, or if the employer was not prejudiced by the delay.
• Disputed employment status. The carrier claims you were an independent contractor, not an employee, so no coverage applies.
• Disputed causation. The carrier argues your injury is not work-related, or that it stems from a pre-existing condition rather than the accident.
• Intoxication. Many workers assume any safety-rule violation or a positive test kills the claim. It does not. Under Workers' Compensation Law § 10, intoxication bars a claim only when it was the sole cause of the injury. If anything else contributed to the accident, the claim survives.
• Insufficient medical evidence tying your specific injury to the workplace accident.

The independent-contractor defense deserves special attention on construction sites, because New York law makes it hard to sustain. Under Workers' Compensation Law § 2(4), a person performing construction work for a contractor is presumed to be an employee unless the contractor overcomes that presumption under the standard set out in Labor Law § 861-c. That presumption shifts the burden onto the hiring party to prove you were genuinely an independent contractor. Many "you're a 1099 contractor, so you're not covered" denials do not hold up once that presumption is applied.

Immigration status is not a lawful basis for denial either. The Workers' Compensation Board does not require a Social Security number to file a claim and does not report immigration status. Undocumented construction workers have the same right to workers' compensation as anyone else. (For a fuller discussion, see our post on the rights of injured undocumented construction workers.)

The Deadlines That Actually Control the Outcome

Timing decides more construction accident claims than any single fact. There are three separate clocks, and confusing them is one of the most costly mistakes injured workers make.

Your notice deadline. You have 30 days to report the injury to your employer under Workers' Compensation Law § 18. Report it in writing when you can, and keep a copy. If you missed the 30 days, do not assume the claim is dead. Late notice can be excused when the employer already knew about the accident, among other exceptions.

The carrier's deadline. The insurer does not have unlimited time to fight your claim. Under Workers' Compensation Law § 25, once the Board indexes a claim, the carrier must file its notice of controversy within 25 days of that indexing or it waives certain defenses, including disputes over employment status or whether the injury was work-related. This cuts in your favor: a late denial can be a weak denial.

The lawsuit deadline. A third-party lawsuit runs on a completely different clock. Under CPLR § 214(5), you generally have three years from the date of the accident to file a personal injury lawsuit against a negligent owner or contractor. Wrongful death claims are governed by a separate statute, EPTL § 5-4.1, and generally must be filed within two years of the death. This is separate from the workers' compensation process. A denied comp claim has no effect on this three-year window.

One critical exception can shrink that window dramatically. Say your accident happened on a site owned or controlled by a government entity, such as a New York City agency, the MTA, or a public school. You may then have to file a formal Notice of Claim in as little as 90 days under General Municipal Law § 50-e. Government-entity cases move on a much faster track, and missing the Notice of Claim deadline can end an otherwise strong lawsuit before it starts.

What Happens After a Construction Accident Claim Is Denied: The Appeal Process

A controverted claim does not disappear. It moves to a hearing. The Workers' Compensation Board's appeals process follows a defined path:

1. Hearing before a Workers' Compensation Law Judge (WCLJ). After a claim is controverted, the Board schedules a hearing (sometimes preceded by a pre-hearing conference). The judge reviews the medical evidence and testimony and issues a decision resolving the disputed issues.
2. Application for Board Review (Form RB-89). If you disagree with the judge's decision, you can appeal to the full Board. You file Form RB-89 within 30 days of the filing of the decision. The form is submitted by web upload or email, and the other side gets a chance to respond.
3. Board panel decision. A three-member panel of the Board reviews the case and can affirm, modify, rescind, or send the case back for further development. If the panel is split, a full Board review may follow.
4. Appeal to the Appellate Division, Third Department. If you still disagree, the next step is an appeal to the Appellate Division, Third Department, filed within 30 days of the Board panel's decision being served on the parties.

Notice how often 30 days appears. Each stage has its own short deadline, and a missed appeal window is usually fatal. Calendar every deadline the moment you receive a decision.

One reassurance on cost: in New York, an attorney or licensed representative cannot charge you an upfront fee for a workers' compensation matter. Any fee comes out of an awarded recovery and must be approved by the Board. You are not paying out of pocket to appeal a denial.

When a Comp Denial Isn't the End: Third-Party Claims

Here is the part injured workers most often miss. Workers' compensation is a no-fault system, which means you generally cannot sue your own employer. But a different party may have contributed to the accident: the property owner, the general contractor, a subcontractor, or an equipment manufacturer. If so, you may have a separate lawsuit against that party. That third-party case proceeds independently of whatever happens with your comp claim. Your comp claim can be denied and your third-party lawsuit can still succeed.

New York's Labor Law gives construction workers unusually strong third-party protections:

• The Scaffold Law, Labor Law § 240, imposes a non-delegable duty on owners and general contractors to protect workers from elevation-related hazards. That covers falls from ladders, scaffolds, and heights, or being struck by falling objects. When § 240 applies, the worker's own carelessness is not a defense, unless the worker's actions were the sole proximate cause of the accident.
• Labor Law § 241 requires owners and contractors to comply with specific safety rules in the state Industrial Code at construction, demolition, and excavation sites. Under § 241(6), a worker's comparative negligence can reduce a recovery but does not eliminate it.

The financial difference is large. Workers' compensation covers medical treatment and a portion of lost wages, but it does not pay for pain and suffering and it caps wage replacement. A third-party Labor Law claim can recover full lost wages and compensation for pain and suffering, categories comp simply does not reach.

To illustrate: The Orlow Firm recovered $2,474,000 for an undocumented worker who was electrocuted on a scaffold, fell, and needed back and knee surgeries. His immigration status did not bar the case, and the recovery reflected damages far beyond what workers' compensation alone would have provided. Prior results do not guarantee a similar outcome.

What to Do If Your Construction Accident Claim Was Denied: A Practical Checklist

If your construction accident claim was denied in New York, a few concrete steps protect your rights:

• Read the denial notice line by line. The controversy notice states the specific ground for the denial. That stated reason dictates the fix. A late-notice denial calls for different evidence than a causation denial.
• Gather corrective evidence. Pull together the accident or incident report, medical records that tie directly to the injury, witness statements, and any photos of the scene or equipment.
• Calendar the appeal deadline immediately. The 30-day window to file Form RB-89 moves fast. Do not let it lapse while you decide what to do.
• Check for a parallel third-party claim. Before you accept that a comp denial is the whole story, have someone evaluate whether a Labor Law § 240 or § 241 lawsuit exists against an owner or contractor. That case runs on its own three-year clock and may be worth far more than the comp benefits.

A denial narrows the question to one issue at a time. Answer that issue with the right evidence, protect the third-party track, and a denied claim often becomes a paid one.

Frequently Asked Questions

Can I appeal a denied workers' compensation claim in New York?

Yes. A controverted claim goes to a hearing before a Workers' Compensation Law Judge. If you disagree with the judge's decision, you file Form RB-89 for Board Review within 30 days. You can then appeal a Board panel decision to the Appellate Division, Third Department, within another 30 days.

Can I still sue if my workers' comp claim was denied?

Often, yes. A workers' compensation claim and a third-party lawsuit are separate. If a property owner, general contractor, or subcontractor contributed to your accident, a Labor Law § 240 or § 241 lawsuit can proceed regardless of what happens with your comp claim, since it runs on its own three-year filing clock.

What happens if my employer says I'm an independent contractor?

On construction sites, New York law presumes you are an employee under Workers' Compensation Law § 2(4) and Labor Law § 861-c, shifting the burden to the hiring party to prove otherwise. Many independent-contractor denials fail once that presumption is applied, so this defense is weaker than it first sounds.

How long do I have to file a construction accident lawsuit in New York?

Generally three years from the date of the accident under CPLR § 214(5) (two years for wrongful death under EPTL § 5-4.1). Watch for the exception: accidents on government-owned sites may require a Notice of Claim in as little as 90 days.

Sources & Official Resources

New York Laws Cited

1. Workers' Compensation Law § 18 — Notice of Injury
2. Workers' Compensation Law § 25 — Payment of Compensation; Notice of Controversy
3. Workers' Compensation Law § 10 — Liability for Compensation
4. Workers' Compensation Law § 2(4) — Definition of Employee
5. Labor Law § 861-c — Presumption of Employment in Construction
6. CPLR § 214(5) — Statute of Limitations, Personal Injury
7. EPTL § 5-4.1 — Wrongful Death Statute of Limitations
8. Labor Law § 240 — Scaffold Law
9. Labor Law § 241 — Construction, Demolition and Excavation Safety

Workers' Compensation Board Resources 10. Controverting a Claim — NYS Workers' Compensation Board 11. Appeals Process — NYS Workers' Compensation Board 12. Form RB-89 — Application for Board Review

Contact The Orlow Firm

If your construction accident claim was denied or controverted, understanding both tracks is the first step toward recovering what you are owed. Those tracks are the appeal of the comp denial and any separate third-party lawsuit. The Orlow Firm has represented injured construction workers throughout Queens and New York City for over 40 years. We can review your denial notice, identify the strongest appeal grounds, and evaluate whether a Labor Law claim against an owner or contractor is available.

Call (646) 647-3398 for a free consultation. We work on contingency, so you pay nothing unless we win.

Se Habla Español

This article provides general information and is not legal advice. Every case is different. Contact an attorney to discuss your specific situation.