A work injury is devastating because the severity of the injury determines whether or not disability will exist well into the future. If disability results, quality of life can be compromised for the long-term and that means extensive injury-related medical expenses and the possible inability to earn a wage through work.

While a person can file a workers’ compensation claim when injured on the job in order to secure wage loss benefits and compensation for medical care, it may not be enough. However, a person can’t file a workers’ comp claim and a third party liability claim against their employer unless special circumstances exist. They can only file one or the other.

But what if the on-the-job injury was the fault of someone else and not the employer or anyone working for them?

This creates a whole new scenario when it comes to securing compensation for your injuries. That is why it is important to understand both workers’ comp and third-party liability so you can see how they are different and how they can go hand-in-hand.

A Description of Workers’ Comp Benefits

To understand how this works and to determine what course of action you should take, it is good to know what workers’ compensation benefits you will receive in the instance you are injured at work.

The first benefit is medical treatment. Most state guidelines make it clear that the medical treatment that is paid for by the insurance company must be “reasonable and necessary.” This means that the insurance company could refuse to pay for experimental treatments or any that they find are not necessary. Non-payment of treatment is one of the most common conflicts that injured workers have with the insurance company when it comes to medical care. Sometimes the decision to not pay is upheld and other times injured workers can convince the insurance company to pay.

The second benefit is wage loss benefits. How long a person receives this replacement wage depends on the severity of their injuries. For instance, a person can receive temporary total disability (TTD). This means that they are unable to work at all as they recover from their injuries over the short-term. Temporary partial disability (TPD) provides a wage loss benefit that is equal to two-thirds the difference between what an injured worker is earning at a current job that accommodates their injury versus what they earned at their old job. Permanent total disability (PTD) warrants lifetime wage replacement benefits. Permanent partial disability (PPD) means that a worker is permanently unable to work at full capacity because of their injury and they will receive a wage replacement benefit that will help them make ends meet.

The third benefit is vocational training that can retrain a worker to work in a new field. If the injury prevents them from being able to work in their former field of work, vocational training can get them back to earning a meaningful wage. This works well for those that are partially or temporarily disabled due to their injury.

What is Third-Party Liability?

Third party liability exists when someone not working for the employer causes the injury. For example, you may be a construction worker working on the same job site as other contractors. Let’s say an electrician is working there and leaves a live wire exposed. There is no warning that the wire is there and that causes you to come into contact with it. You are electrocuted, causing serious burns, muscle damage, and heart issues.

This is the perfect example of third-party liability because the electrician was not an employee of your employer.

But it doesn’t stop there when it comes to third-party liability. There are different ways that it can happen. Some of the ways are:

  • Car accidents in a company vehicle or while being paid to be on the road performing work-related tasks. The person who caused the car accident is a liable third-party.
  • Defective products. Perhaps a certain tool or device is defective due to faulty manufacturing, which makes the manufacturer liable for the injuries.
  • A delivery truck driver may have an accident while pulling into the bay of a warehouse, causing warehouse workers to be injured.
  • A substance made by a third-party company could be toxic and not contain the proper warnings, causing workers to become injured or later develop occupational diseases.
  • Co-worker negligence can be considered third-party when the co-worker causes injuries willfully or through gross negligence. Co-worker assault is a good example.

There are many more scenarios that can be played out to describe the different ways in which a person can file a third-party liability lawsuit against a person or company.

Can You Sue Your Employer at All?

Generally, you can’t sue the employer when an injury is sustained on the job. This is why workers’ comp exists, but there are some exceptions to this rule.

The first exception is when the employer doesn’t carry the state mandated workers’ comp insurance. If that’s the case, you can file a lawsuit against them to cover the damages. You could sue for lost wages, medical bills, pain and suffering, and out-of-pocket expenses. Something to keep in mind is that there is a special fund the state has set aside to help injured employees whose employers do not carry the mandatory workers’ comp coverage. This is mainly available to uninsured injured workers who are deemed eligible, but it may not pay the same amount in benefits that standard workers’ comp pays.

The second exception is when the injury is the result of the employer’s gross negligence. Even if the employer carries workers’ comp insurance, you could sue them. Of course, you have to have adequate proof that they were grossly negligent for this to work, but there have been employees that have successfully sued their employers for damages.

The third exception is employer assault. Employers are not protected by workers’ compensation insurance if they assault an employee. The no-fault limitation of workers’ comp is gone in this case. The exception to this exception is when the employer strikes an employee in self-defense. If an employee is injured because of the self-defense actions of the employer, workers’ comp can completely deny coverage for that employee’s injuries.

Filing a Workers’ Comp Claim and Suing a Third Party

So now that you know what workers’ comp provides, what constitutes third-party negligence, and what you can sue an employer for, it is time to combine these things.
Let’s revisit the construction site injury scenario where you were injured by a live wire that was left exposed by an electrician who works with another company. You can file a workers’ compensation claim so that, when approved, you can receive the wage replacement, medical, and vocational benefits that will help you get back on your feet in some capacity. You can also sue the electrician or the company the electrician works for so you can recover additional monetary benefits that can help you financially through your recovery.

If you were involved in a car accident while running an errand for your boss while on the clock, you can file a workers’ compensation claim and also sue the driver at fault for their negligence. If the wreck was due to a faulty car part, such as defective brakes, you could sue the brake manufacturer for your injuries.

Now let’s say that your employer got into an argument with you and hit you over the head with an object. The impact caused you to develop bleeding on the brain. This is a case where you can file a workers’ compensation claim against the employer and sue them for the assault. The assault could also result in criminal charges against the employer.

But what if the employer doesn’t carry the state-mandated workers’ compensation insurance?

You will then sue the employer for their actions and can work with your workers’ comp attorney on establishing your eligibility for benefits from the state workers’ comp fund. If eligible, you can file for benefits so that you can receive something to help you financially and medically during your recovery. If you then receive a settlement from the employer via your third-party claim, the settlement can more than adequately fill the gap between what you used to earn and the workers’ comp benefits you receive.

Now You Know What to Do

If you were questioning whether you could file workers’ comp and sue your employer, you now know what to do. If your employer was grossly negligent and you can prove that gross negligence, then you can sue. If you can’t prove it, then it is best to stay with filing the workers’ compensation claim. That way you can receive the wage loss benefits and medical care that you need. If you find that your injuries prevent you from returning to the same line of work, then you have the vocational training that can help return you to the workforce in a position that has pay comparable to what you used to earn. Just keep in mind that if a third-party was involved, then you can go ahead with filing a claim against them in addition to the filing of your workers’ comp claim.

Disclaimer: The content of this article is a general guideline made available for educational purposes only and is not intended to be used as legal advice for the reader's specific situation. By reading our blog and website content, the reader acknowledges the above and understands there is no attorney-client relationship created between you and Raipher, P.C. through this content. To get specific legal advice, we encourage you to book a free consultation with one of our attorneys to clarify the legal aspects of your situation.

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