An employee performing his assigned job duties can be injured by a third party who has little or no link to the employee’s business. These injury cases have special legal concerns.
In most cases, employees injured by independent third parties can file workers’ compensation claims through their employers’ insurance companies AND separate third-party negligence claims against those who inflicted the injuries.
If the employee receives an award from the third-party claim, most state laws require him to reimburse the workers’ comp benefits. The employee keeps the remaining amount, such as awards for pain and suffering or punitive damages that are not covered by worker’s comp.
Example: Delivery Man Hit by Drunk Driver
A delivery man on his work route is struck by a drunk driver and seriously injuried. The delivery man is entitled to collect workers’ compensation benefits and pursue a personal injury claim against the drunk driver and his insurance company.
The delivery man’s workers’ comp insurance covers only medical benefits and partial wage reimbursement. The third-party personal injury award includes medical bills, out-of-pocket expenses, full lost wages, and compensation for the his pain and suffering. After reimbursing workers’ comp the amount he received for medical expenses and a percentage of his wages, the delivery man keeps the remaining amount.
Example: Electrocuted While Installing Cable
A cable TV company assigned an employee to install Internet and cable access to a new apartment complex that is under construction. While putting in the lines, the installer is seriously injured by electricity from an exposed high voltage wire.
He files a workers’ comp claim and a third-party lawsuit against the apartment complex owners. His lawsuit demands actual damages, pain and suffering, and punitive damages because of the apartment complex’s gross negligence in having the cable company install lines while high voltage wires are exposed.
A jury awards the installer actual damages covering his medical bills, out-of-pocket expenses, full lost wages, pain and suffering, and a substantial amount for punitive damages. After he reimburses the workers’ comp insurance company, the installer keeps the difference between the partial lost wages paid by workers’ comp and the full amount of lost wages awarded by the jury, plus payment for his pain and suffering and the full amount of punitive damages.
Additional Third-party Actions
An employee who receives benefits from his employer’s workers’ comp insurance may file a third-party lawsuit against the manufacturer of a defective product that causes injury. This is referred to as a product liability lawsuit. The employee reimburses worker’s comp and keeps the balance of the manufacturer’s settlement amount or jury award.
Example: Defective Brakes
An employee drives a front-loader at a lumber yard while several co-workers are nearby. The driver of the front-loader finishes loading timber onto the company truck, sets the brake and climbs off. When he steps off the front-loader, it rolls forward and crushes the legs of one of the other employees. An investigation finds that the front-loader has a defective hydraulic brake system.
The employer was aware of the defective brake system for several months, but because the front-loader had been otherwise operating without any braking problems, the employer failed to have the brake system repaired.
In addition to workers’ compensation, the injured employee has the basis of a defective product claim against the manufacturer of the front-loader. After reimbursing workers’ comp, he keeps whatever is left from the third-party action.
While his employer’s knowledge of the faulty brake system and failure to repair or remove the front-loader from service constitutes negligence, it probably doesn’t rise to a level of gross negligence combined with substantial certainty. The employee most likely does not have the basis for a third-party suit against his employer.
You may have the right to file a third-party lawsuit against the manufacturer of a toxic substance that causes injury. Toxic substances can include poisonous fumes, lead based paint, asbestos, and other substances which directly or indirectly cause serious injuries. If you can prove your employer is aware of the existence of a toxic substance and fails to have it removed, you may also be entitled to sue your employer.
This is especially true when your employer is aware of the toxicity of the substance and fails to provide protective clothing, respirators, or otherwise fails to protect you from toxic poisoning. That can be the basis for a civil lawsuit against your employer for gross negligence, as there is a substantial certainty the toxic substance might seriously injure you.
Example: Asbestos Exposure
For six months, several full-time employees work at a jobsite removing debris. Although the employer knows the debris includes quantities of asbestos, he fails to tell the employees about the dangers and does not provide them with protective clothing, respirators, and goggles.
As a result of the exposure, an employee develops cancer. This employee has the basis for a third-party lawsuit against his employer. Because of the employer’s gross negligence and a substantial certainty that the asbestos would cause serious injuries, the employee may be entitled to punitive damages.
Co-workers’ Actions or Negligence
Lawsuits against co-workers are valid in cases of co-worker assault and when co-workers purposely, willfully, or by an act of gross negligence, cause your injuries.
Example: Fight at Work
Tension between two co-workers builds for some time. Finally, a heated argument escalates to physical violence. With no provocation aside from derisive language, one co-worker punches the other in the face, breaking her nose.
The injured employee has the right to workers’ comp benefits, and has the grounds for a civil lawsuit against the worker who assaulted her. If the employer is aware of the assaultive co-worker’s propensity for violence and has not taken appropriate action to discipline or remove the assaultive employee, the injured co-worker may also have the basis for a third-party civil lawsuit against her employer.
Suing Your Employer
Before accepting a position, be sure your prospective employer carries workers’ compensation insurance or is otherwise self-insured. Most employers post their certificate of insurance in a common employee area, such as a break room. Check the expiration date, because if your employer’s certificate of insurance expires, you aren’t covered.
Be aware that a small company may not be required to carry workers’ comp insurance. The issue of employee coverage may not seem important when you really need a job, but it will be if you’re injured on the job and can’t pay your medical bills or rent.
Generally you can’t sue your employer for an on-the-job injury – that’s the purpose of workers’ compensation. But there are three primary exceptions when you can sue your employer:
- No Workers’ Comp Insurance
If your employer fails to carry state mandated workers’ compensation insurance, you may file a lawsuit against him for your injuries and resulting damages. Unlike workers’ comp claims in which you are only permitted to recover compensation for your medical bills and partial lost wages, employers who violate state laws by failing to provide required workers’ comp benefits are subject to third-party lawsuits.
In these cases, you can sue your employer for your resulting damages. Damages can include your medical bills, out-of-pocket expenses, the full amount of lost wages, and your pain and suffering. In extreme cases, the lawsuit may include punitive damages.
- Gross Negligence
Even if your employer carries workers’ comp, you may be able to sue him for a work-related injury when you can prove it was the result of your employer’s willful, wanton, gross or reckless negligence. Some states include intentional or egregious conduct as sufficient proof of negligence for an injured employee to successfully sue her employer.
To succeed in a lawsuit based on willful, wanton, or reckless negligence, you have to prove the likelihood that the employer’s actions or inactions would result in injury. These cases are very difficult to prove because employers are normally exempt from lawsuits based on negligence alone.
- Employer Assault
Workers’ comp insurance does not protect employers from lawsuits brought by workers when the employer assaults an employee. In almost all cases, an employer-on-employee assault voids the no-fault limitation of workers’ comp insurance coverage.
The injured employee has the right to file a private, third-party lawsuit against the employer for medical bills, out-of-pocket expenses, full lost wages, and pain and suffering. In extreme cases, he can also seek punitive damages. Additionally, an assaulted employee has the right to file criminal actions against the employer.
There is an exception to a third-party suit based on assault. Normally, employers are not liable for damages when the employer struck the employee in self-defense. When an employee initiates an assault and is injured, the employer’s workers’ comp insurance can deny coverage for his injuries.
Supplemental Workers’ Compensation Funds
Every state has a special fund set aside to provide benefits to injured employees whose employers fail to carry state mandated workers’ compensation insurance. Money for the fund comes from the premiums employers pay for their standard coverage. It’s available to eligible, uninsured injured workers. Most of these state funds don’t pay injured workers the full amount of benefits they would receive under a standard workers’ comp insurance policy.
To be eligible to receive benefits from a state fund, your injuries must be the type normally covered under a standard workers’ comp policy, and your employer doesn’t carry the required workers’ comp insurance. In most cases, you can sue your employer, although you may have to refund a portion of monies paid by the state’s fund.
The Role of Attorneys
Should you have to file a lawsuit against your employer or other third party, you’ll need the legal advice and counsel of an experienced workers’ comp/personal injury attorney. Most don’t charge for an initial consultation. It’s wise to meet with one and discuss your case. You have nothing to lose and everything to gain.
Injured by Falling Ice
In this premises liability claim, the plaintiff was injured by a chunk of ice falling off the building where she worked. There was a dispute between the building owner and management company regarding liability.
How Much is Your Injury Claim Worth?
Find out now with a FREE case review from an attorney…
Visitor Questions on Issues with Work Injury Claims
Search for a Previously Answered Question
I was helping a resident into bed when he kicked my hand. I heard a crack in my left shoulder followed by excruciating pain. I went to the company clinic, where doctors said I had sprained shoulder. I was put on light duty and therapy. After 3 weeks I had an MRI which found a full... Read More >>
I am a firefighter and was injured in an assault that happened while attending a patient. The patient had suffered a TBI (Traumatic Brain Injury) in the past and became combative and kicked me, injuring my knee, which will require surgery and 4-6 months of recovery. During my recovery time, I will be covered under... Read More >>
I have been getting benefits under Worker’s Comp for 2 years now in California. Last week, while driving I was hit by a car in the rear bumper. I was taken to the hospital, and the doctor did X-rays of the neck only (because I told him I was under worker’s comp). He explained to... Read More >>
I tripped over an extension cord that was plugged into an outlet from a computer that was not safely tied down to the floor. My right foot caught the cord and I fell down. I’m wondering if I can sue the employer for negligence. The reason I am inquiring about suing is because the employer... Read More >>
A friend of mine works in a minimum security jail facility. He was assaulted by a prisoner there, who had previously assaulted a fellow employee that day, as well as prior days before that. The incident resulted in a torn shoulder and bumped head on the ground. The shoulder injury required surgery and rehab. My... Read More >>
I received a traumatic brain injury last year while on the clock. The issue I have is that the employer I worked for requested I clean property adjacent to the store, that is owned and managed by another company. After telling my employer repeatedly that the company is not responsible for the cleanliness of that... Read More >>
I received a head injury while at work. I sat in a broken chair that was removed from a room by the custodian and placed in another centrally located room. I did not realize the chair was broken and sat in it, resulting in a concussion and ongoing migraine issues. Workman’s comp has paid all... Read More >>
My daughter’s dad, John, was working for cash as a day laborer, doing construction on houses in TX. He got metal shards lodged in his eye and the guy refused to take him to an ER or do anything for him. The guy took him home and stopped taking his calls. John’s been to a... Read More >>
I worked at a restaurant and was cut badly on my ankle when a wine bottle fell in the dimly lit basement. I was cut very badly and now have a hard time standing for long periods and have a large scar (which is a problem as I also model). I was paid off-the-books and... Read More >>
I have used this Q & A form before and know you edit to make it look more professional (which I love) so I will just put all the info in and let you keep out what is not necessary. We also have 200% confidence in our attorneys so there will be no interference in... Read More >>
I have a Workers Comp Case in California. On 7/16/09 I was coming out of the bathroom and the door handle came off when I opened the door. I lost my balance and fell backwards onto a tile floor, flew across the floor into the toilet and hurt my back & shoulder. I worked for... Read More >>
If someone is injured on the job and receives workers comp benefits, and also won a 3rd party personal injury claim, is workman’s compensation supposed to be paid back after the case is settled? Is this a law? If so what is to be paid back? If you can’t answer these questions, where can I... Read More >>
On 7/2/11 I was conducting a hydrographic survey of a channel in Texas for the US Army Corps of Engineers. We were surveying the channel to check on the progress of a contractor. The contractor failed to mark a submerged pipeline which in turn resulted in the violent death of a 12 yr old girl,... Read More >>
I fell in an open drainage hole because the cover/plate was not on the hole as it should be. This happened while I was working and I’m currently going to therapy for an injury to my shoulder as a result of the fall. My company rents the office space from an outside landlord. My question... Read More >>
I went to an event for work. It was a team building exercise at an indoor go-kart track. The briefing given to participants stated no hitting other karts, this was not bumper cars. At the end of a long straightaway, halfway through a 90 degree turn I was struck from behind. I was pushed into... Read More >>
I recently dropped a workers compensation claim on the suggestion from my workers comp attorney. He claimed that I didn’t have a strong enough case because of a lack of medical testimony from doctors. He submitted a letter to the courts asking that the case be closed with no prejudice. It was accepted and the... Read More >>
I work at a temp agency and got hurt at the job they sent me to. While working the assembly line and sitting on top of the platform on a chair, I reached over and then fell backwards onto the chair, causing injuries to my neck, back, shoulder and genital area, as well as breaking... Read More >>
My husband was working and while cleaning the outside of a commercial building he was struck by a 60ft ladder. The owner of the ladder was a contractor hired to hang a sign. It was not properly secured. He suffered a Neck Sprain, a shoulder injury which involved surgery, and a herniated disk in his... Read More >>
While leaving work 6 days ago, I fell down a flight of 12 granite stairs. I was taken to the hospital via ambulance, but luckily only suffered a sprain/contusions to my knee, hand and face. The building I work in is not owned by my company. And a report was filed with building management. My... Read More >>
I fell and was injured on the job. I had 2 surgeries to correct the injury, and left with a frozen shoulder. I have a workers compensation case opened and also a homeowners insurance case where the slip and fall took place. I HAD an attorney, LONG story. My question: Can I settle with workers... Read More >>
I was in my work truck at a stand still in a work zone. A lady hit me in the rear with her vehicle doing 60 mph. I’m wondering if I can collect from workers comp and the lady’s insurance company? Read More >>
I slipped in the parking lot of my job when getting out of my car. The property is owned by a management company. My company leases offices. They water the grass each morning and I parked in the last spot, where it was like a culdesac. There was grass in front of the parking spot... Read More >>
I was hit in the head by a metal bar that fell from the top of my office door, that was installed by a Security Company. I was told that the actual employee who installed the bar was not licensed to do so. He was a friend of the Company’s owner. Am I allowed to... Read More >>
I was working for a moving company and we were at a business storage moving a unit out. There was ice and I slipped and fell backwards with my leg the wrong way and broke my leg. My boss didn’t want to come to the scene nor did he want to pay workmans comp. He... Read More >>
I was crushed by a piece of construction equipment at work and workers compensation doesn’t pay pain and suffering. Right now I’m paraplegic. This all has caused extreme distress. Can I collect workers comp AND personal injury (for pain and suffering)? Read More >>
I work for a medical waste disposal company. Most of our clients are hospitals. One job I had was in a hospital where I got poked from a needle that was mixed with pharmaceutical waste. I’m wondering for how long would I be able to file a case against a third party? Would I be... Read More >>
I had an On the Job Injury, due to the negligence of a Contracted Security Company. I sent the Company a Demand Letter and the Company’s Claims Manager called my Supervisor and told her to tell me to call him. He also gave my Supervisor my Claims Number. Is this not violating my privacy? This... Read More >>
I work for a transportation company; working the grave-yard shift. The parking lot where employees park their personal vehicles has recently been set with railroad ties to separate the roadway from the parking area. The parking lot is not lighted. We have asked management many times to provide lighting for safety; the company has elected... Read More >>