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.
How can you find out if a company has state mandated Workman’s Comp?
Virginia – sorry for the delay in getting back.
Every employer with one or more employees is required to have Worker’s Compensation coverage. Though such coverage should be posted for employees to see, it may not be. In such a case, you can call Department of Industrial Accidents (DIA) Office of Investigations to determine if an employer is in compliance. They can be reached at (617) 727-4900.
Hope this helps.
Okay,so I hurt my right shoulder at work , filed a comp claim , then wasn’t working about a week later got hit my semi, filed a claim , went to ime,for n.y. no fault doctor and for worker comp doctor both say 50/50 At fault ,semi company settled out and comp has not paid nothing ?
Hello Kristen,
we will need a lot more facts to determine if we can assist. Please feel free to call and discuss (413-746-4400). Mention Raipher asked you to call in.
Can a contracting company who is paying compensation to one its employees who was injured on another Company’s site, claim the costs back from the Company if it was liable for the mechanism of injury?
Hello Cecilia,
Where an injury at work or in the course of employment is caused by a third party’s negligence or where a third party may be strictly liable, then the employee may seek damages from the third party and the Contracting Company (as referred to in the inquiry) could seek to recover it’s costs from the other Company’s carrier. Hope this helps.
If an employer is sued in a Third Party(due to indeminifaction agreement employer has signed with his GC) Employee Injury Law Suit, workman comp is already paying the medical/vocation benefits to the employees. Which Insurance Carrier of Employer will provide defense to Employer? Workman or Liability Insurance?
Hi Avi,
The answer is fact sensitive. It depends on which policy pays what and the language of the indemnification agreement. Also, both insurance carriers may have right of subrogation. Hope this helps.
I was rear ended while driving a company delivery van by a third-party driver, I know that I can sue my employers worker’s Comp insurance as well as the third-party drivers insurance as well as my own insurance company, but my question is can I sue my employer’s automobile insurance carrier as well ?
Hi Mike – sorry for the delay in getting back.
to answer your question whether you can sue your employers car insurance carrier as well: No, unless your employer does not have worker’s comp insurance and even if they don’t the auto carrier may dispute the claim. Feel free to call if you would like to discuss in more detail. Thank you.
Hello
I’ve been on workers comp for 2 years and now they are not paying for medical and I’m suffering for lack of medical treatment what are my legal rights for compensation also i have a lawyer but there saying the insurance company states the wva office of judges can’t rule in this case because they’re in Pennsylvania but they are fighting it and it’s prolonging me getting medical help. What are my options please and god bless everybody dealing with this corrupt system.
Thomas,
I am genuinely sorry for the pain and frustration you are experiencing. Please contact our office and ask for Jaime, our Worker’s Comp. Administrator who may be able to answer some of your questions.
I’m dealing with the same shit. Hang in there it can only get better.
I drive a big truck and was hit head on resulting in cervical herniated discs. I sued the driver and I am receiving workmans comp.the driver had very little insurance.my lawyer now is going after my employer for money (to make up for lost wages and pain and suffering and more) will my employer hold it against me for suing their insurance?
Mike,
If you are currently represented by counsel, I would advise asking these questions of your attorney.
If a person is at fault causing a car accident and the hurt party receives workmans comp for medical and lost work, can the insurance company covering the hurt party recover the paid benefits from the third party who was at fault?
Hi Clark,
Short answer: yes, but there are many protections to allow the injured party to offset the amount sought by the worker’s comp insurance company. Feel free to call if you would like to discuss in more detail (413-746-4400). If you do, please mention our “discussion”. Thank you.
I work in child welfare. Lunches are not paid. There is no set time for lunch. No cafeteria at work. I was injured on fast food property while getting a burger ; after a home visit, and heading back to the office to leave for another appt. Workers compensation denied the claim stating that my lunch is unpaid and therefore no compensation. Do I have the ability to fight the workers compensation claim as well as file a personal injury claim against the fast food establishment? Are there law restrictions on this in Maryland? What r my options? If only one is allowed, which is the best option?
Michelle – I apologize for the delay in getting back.
You should be able to pursue both claims. Feel free to call if you would like to discuss in more detail (413-746-4400). Mention I asked you to call in. Thank you.
I work for the a Indian Tribe as a Transit Bus Driver with a CDL license. I was injured on the job. My claim is going thru Tribal First workers comp and Hudson-WC is the carrier. They stopped my claim due to a IME Dr. report stating that I am MMI and released back to full duty. But I was waiting for a MRI, and I told the IME Dr. about my MRI scheduled for the following week. My Ortho Dr. told me that the MRI results showed I have a Left Rotator Cuff Tear and need surgery.I can not get any lawyer to try and take my case. I’m getting really depressed about this whole situation. Is there any way I can get some help?
Hello Michelle,
There are lawyers that handle Indian Tribe Litigation. If you are not able to find a competent attorney to handle your claim please call and we can assist. (413-746-00 and mention I said to call). Thank you!
Hey Shawn M O Connor,
My husband was working in a warehouse in Brooklyn. One day this guy struck the front side of the forklift that my husband was sitting on. The forklift was stationed. However, the guy’s company is now suing the warehouse that he once worked at and is also suing my husband. Should my husband consult a lawyer?! Should he countersue the plaintiff because of lost wages?!?
Hi JP,
Unless your husband’s employer is defending your husband he should consult a lawyer, if he hasn’t done so already. Even if they are it may still be prudent to consult a lawyer. If your husband was injured because of the negligence of the individual that worked for another employer (i.e. not your husband’s employer) he may sue that company and individual for his injuries and pain and suffering. Feel free to call if you would like to discuss in more detail. Please mention to our receptionist I said to call in. Thank you.
I was involved in an physical assault by a patient at a hospital I’m on contract with. I have repeatedly told the hospital its an unsafe environment before this incident and my company has told them too. I filed WC with my company I’m contracted with and now the hospital is trying to fire me, even though I have a signed contract. The Supervisor of my area with hospital is trying to intimidate me. Does this fall under 3rd party liability? I filed a police report and turned the hospital in to OSHA and it’s been a struggle since the incident. They brought in a temp person from my company and the supervisor of the hospital told this person I was milking WC and my injuries weren’t that bad. The supervisor also told him I wasn’t returning to the assignment and would he be willing to take over my contract. My doctors notes have said I could return to work with lifting restrictions but the hospital wouldn’t allow it. I’m working in Saint Paul, MN
Hi Deni – sorry for the delay.
You may be able to pursue a third party claim against the hospital depending on the terms of the contract between the company you work for and the hospital. Even if you cannot pursue a third party claim against the hospital for your injury your position may still be protected because the hospital cannot retaliate against you because you made a complaint to OSHA. The analysis is very fact sensitive. Feel free to call (413-746-4400) if you would like to discuss in more detail. Please mention I advised you to call in. Thank you.
i stepped off an elevator which was higher than the floor, which caused me to injury my knee. during treatment for the injury i was hospitalized with dvt and pe. i spent 2 weeks in the hospital, i have a suit for workers comp, but i am wondering if i am able to sue the elevator company???
Yes more likely than not you will have a third party claim in which you can recover for pain and suffering as well as any loss of earning capacity not covered by your workers comp claim. Give me a call and I can assist you.
I was hit by a car while working, my employers have been paying my workman compensation. For 3 weeks now. The physician they send me to gave me pain medication and muscle relaxant along with therapy to help me with no work. Workman com. Decided to change the PHYSICIAN and the new physician took me off of all medications for treating t b email pain and gave me steroids only and told me to return to work. The pain is great. So I am to go back to work with pain or risk losing my job. Can they do this? What can I do to prevent more injury to my neck and arm.
Hi Delois,
You need a Doctor to provide you a disability slip to remain out of work. If not, your employer can and most likely will terminate you. If you are not happy with your current doctor you are free to get another doctor. Feel free to call if you would like to discuss this matter in more detail. (413) 746-4400. Make sure to mention I suggested you call in.
If you sue a third party and win the case while having a workers comp case, how much do you pay workers comp back? I heard up to 2/3 of your winnings?
Your answer is generally correct. Generally there is an offset of 1/3 in recognition of the attorney’s fee incurred by the client in recovering in the third party action.
While i was at work i was looking under my golf cart to see if there was something stuck in my gas pedal mechanism. My co worker walked up pushed the pedal disengaged the brake. The golf cart lunged forward trapping muy head between the Frame and the concrete below me. I suffered a head injury and undergoing medical attention. Is this considered third party negligence?
Hi Brenda. To answer your question: Is this considered third party negligence? Probably not. It is potential workers comp claim, but not third party action.
Take care.
I was injured by an at fault third party while driving a company van. Workers comp is taking care of lost wages and medical, and giving me a choice of suing the third party myself or having them do it to recover costs. Can you recommend the best option?
Hi Jason – sorry for the delay. What is your best option? We can handle the third party claim and you should not let WC handle it as their only interest is to recoup what they paid out as opposes to getting you additional compensation. Please contact us if you are interested in moving forward with a claim.
Take care.
Involved in a car accident while driving company vehicle at work. I started workmen’s comp case wth an attorney. I am also suing the insurance company of the other vehicle. Who will pay off the fastest?
Sorry to hear about your accident. Here is my response to your question: If you are disabled from your job as a result of a work related accident you are entitled to worker’s Comp benefits. Generally a personal injury settlement will not occur until you have heard or reached a medical end result.
I was hurt on 8/30/17 they operated on me and I an recovering slow I started P/t this week I make 900./ to1200. a week and comp is paying me 250.77 a week to live on . I have a hearing on this with the ins. co. and workers comp board. I don’t know if I should get a lawyer now or wait to see they offer me.I know a lawyer will take a percentage. what is the max they can take.thanks Bill
Hi William: Yes you should hire an attorney now and not wait. First, your weekly comp benefits appear too low based on your average weekly wage which is something that should be looked at asap. Your comp benefit should be 60% of your average weekly wage over the prior 52 weeks. In regards to a settlement, the fee the attorney will receive depends on what type of settlement you are considering. For example if it is a lump sum settlement with liability it is 20% and without liability 15%, however, the insurance company pays the fee and it is not deducted from your settlement. Please feel free to contact us and we can answer any additional questions you may have. Thank you.
In your example of a car accident on the job. What if both drivers in the accident were operating company vehicles (separate companies). Can the driver not at fault sue the other company the person was working for or the driver himself?
Hi Alisha,
assuming both drivers and cars are owned by different companies you can sue both the driver and company. There are many factors that relate to the companies exposure which cannot be answered from the facts in your hypothetical question. If you think you have a case, feel free to contact us so we can give you a more detailed answer. Thanks!
So there’s a 3rd party involved that caused this accident. I have the right to go after them however their liability is only at 100k. After a lien is placed and my employer gets their reimbursement there’s nothing so is my employer responsible for anything?
Hi Tracy,
Your employer is not responsible to pay you outside of providing worker’s comp insurance. You will however be able to recover because if the amount of damages exceed the amount of the policy, your attorney can negotiate the lien amount. Please feel free to call to further discuss your matter (413-746-4400)
Hello my name is Donald, I was in my delivery truck when somebody rear ended me. I have some injuries. I am on work comp now. Since I was in my delivery truck can I sue the person that rear-ended me. And how much will work comp get if I sue them. Since I would have to pay them back and when I pay them back are my attorney fees included in that settlement or attorney fees separate?
Hello Donald,
Yes you can bring a claim for any personal injury you sustained as result of the accident. The worker’s comp insurance company will have a lien on any recovery which will be reduced by the attorney’s fees for the personal injury attorney and depending on the amount of the settlement and circumstances there could be a further reduction of the worker’s comp lien. Please feel free to call to further discuss this matter (413-746-4400). Mention I asked you to call in. Thank you for your inquiry.
Hi, I’m employed by a Temp Agency and was injured ( broken wrist non-surgery) at assigned worksite (warehouse). Can I sue the warehouse for negligence
Hello Omar,
It depends on the facts. The contract between the company and the temporary agency along with what worker’s comp insurance is in place will control. Also, depending on who owns the warehouse and the facts of how you were injured. Please feel free to give me a call to discuss in more detail (413-746-4400)
I was rear ended in company van i have suffered neck injury and shoulder injury i am no longer able to work i have filed for Ssa does the third party suit have to know that i filed?
Hello!
I assume you mean SSDI? If so there is no harm if the third party becomes aware you file for SSDI. If you obtain SSDI benefits and then settle with the third party, the settlement will have to be reported to SSI office and there may be off sets or reduced SSI benefits. The outcome will be fact dependent.
My brother had an accident while working. An 18 wheeler from another company hit him and pull him under the 18 wheeler. Brother and the person with him were badly injured. He was taken with an ambulance and she was airlifted. Now, their employer does not have workers comp. So we don’t know what to do and who is going to cover for all the injuries, their employer or the third party that was involved. This has never happened to any family member so we really don’t know what to do, any advice will be appreciated. Thank you in advance.
Hello Dulce,
Your brother’s employer will be held responsible to pay worker’s compensation if it failed to provide worker’s comp insurance. Additionally, you brother has a third party claim against the driver and the his company. Please contact me asap so we can take immediate action to protect your brother’s rights and obtain compensation as we specialize in this area of the law. Please mention Raipher asked you to call in (our office # is 413-746-4400).
My spouse was injured at work. I’m semi retired only working on a limited part time basis. He was exposed to carbon monoxide over a 5 month period in his work van that has a workshop on the back run by a gas powered generator. 5 months he suffered until his body gave out. He has just been informed (52days) that his WC claim has been denied. He is applying for short term disability in order to start some revenue coming in. He’s working with a WC attorney and a third party liability attorney. My question is who can I take to court to receive compensation from for all of the pain and suffering that I’ve gone through seeing my spouse of 28 years slowly become sick over the course of 5 months and and not know why. Now that he cannot drive due to the seizures that he suffered during his hospitalization I mist drive him everywhere and to all medical appointments and follow ups. This does not allow me the luxury of accepting job assignments as a contract health examiner. In addition to his life changing significantly my life has changed, I feel traumatized, anxious, depressed, worried about our future. We also have had a loss of companionship while he was being poisoned and our marriage suffered. Who can I turn to if anyone as we operate as a whole and tbis terrible scenario has completely taken our feet out from under us. We’ve got good credit, nice house, nice cars, some savings, and we’re looming forward to him working another 20 years making his 6 figures and my part time helping to add to savings. His company more than likely will ask him to resign and his earning potential is in jeopardy as is our livelihood. I feel im entitled to something as tbis accident was through no fault of his own but of the third party. Where does the spouse of an injured worksheet compensated and from whom? I’m in therapy to deal with the changes, also having physical symptoms, pain. , suffering, loss of consortium, loss of husband’s future earnings…etc. is there any help for me?
Hi Liza,
You can bring a loss of consortium claim. Usually it will be included in the third party complaint. If you need further assistance, please do not hesitate to contact this office (mention our “discussion” here).
This may vary from state to state, but I am in a situation very much like the construction scenario you detailed. I am on workers comp from my company but this incident is due to another party’s negligence. If I pursue suit against them, will I have to reimburse workers comp with the proceeds? Thanks.
John – Although worker’s compensation laws vary from state to state, generally if you receive worker’s comp benefits and settle with a third party you are obligated to reimburse the worker’s comp carrier that paid benefits a percentage of the amount the worker’s comp carrier paid. The amount is often negotiated and depends on the amount of the settlement, how clear the liability is, stage of settlement and other factors. If you need assistance in this area, please feel free to contact Raipher P.C. to discuss or for representation. Thank you for consulting our firm for your legal needs.
Hello I was involved in a workmens comp related injury, several fingers amputated. the company was cited by OSHA, my life has been devastated. Can you answer what would be the reluctance of bringing third party case
I’m sorry to read about your accident and can imagine the very difficult and stressful consequences on your life. Our team of attorneys has extensive experience handling workplace injury cases involving third-party liability. We have achieved multi-million dollar settlements from third party defendants. The question of third-party liability regarding a workplace injury is heavily fact dependent, therefore, to best assist with your potential case, please call asap so we can learn more about the facts. You can reach us at (413) 746-4400 – you can mention Raipher asked you to call in to discuss your workers comp case further. We look forward to hearing from you soon. Take care.
PS: statute of limitations restrict the time you have to file suit – so my advice would be to call in early so there is enough time to build a winning case