Forging a successful and productive team can only occur when workers can depend on each other to do their jobs. Unfortunately, mistakes and accidents can happen, and workers do get injured. Employee negligence and errors are one of the leading causes of on-the-job injuries.
Reporting Employee Error
Employees are not legally required to report negligent coworkers, although your company’s policy may require it. Also, when a coworker’s behavior puts others at risk, reporting it is ethically the right thing to do. Whether out of lack of proper training, personal problems, or the consumption of alcohol or drugs, coworker errors can result in injuries. If you can do something to prevent injury, you have an obligation to do so.
An employee who is injured on the job has a right to collect workers’ compensation benefits, whether his injury is due to a coworker’s mistake or any other accident. Negligence is not a factor in worker’s comp; the on-the-job injury is all that matters.
Workers’ comp benefits pay for medical and therapy bills, out-of-pocket expenses (medications, bandages, etc.), and approximately two-thirds of a worker’s lost wages. Pain and suffering is generally not covered under workers’ compensation.
Third-party Negligence Claims
Employers’ Legal Duty to Act
Injured workers usually are limited by law to workers’ compensation benefits. Under certain conditions though, a worker may claim additional damages by filing a third-party claim against his employer.
An employer who fails to intervene or remove an incapacitated or error-plagued worker can be held liable if the employee’s negligence results in injuries. A third-party action may entitle an injured worker to payment of medical and therapy bills, out-of-pocket expenses, total lost wages, and an amount for pain and suffering.
The Basis of a Third-party Claim
Employers who become aware of a worker’s job-related errors normally have no legal duty to intervene, discipline, relocate, or terminate that worker. There may be legitimate reasons for not doing so.
The employer’s legal duty to intervene changes if he becomes aware that an employee’s negligence jeopardizes the health and safety of other workers. A third-party action must be based on proof that the employer’s negligence (in not taking corrective measures to eliminate a worker’s errors) rises to a level gross negligence or a wanton disregard for workers’ safety.
Proving a Third-party Claim
There isn’t a strict legal definition of “gross negligence” or “wanton disregard for safety” required to support a third-party claim. Instead, the courts decide each case based on its own merits. Unless you have serious injuries and proof of your employer’s gross negligence, do not pursue a lawsuit.
Third-party actions require proof of serious injuries, such as fractures, head trauma, serious burns, scarring and second- or third-degree burns. Soft tissue injuries like pulled muscles, minor burns, abrasions and contusions aren’t enough. No matter how upset with a coworker or your employer you might be, without proof of gross negligence and serious injuries, your lawsuit won’t succeed.
Example: Burned by boiling grease
David worked for a fast food restaurant. He and several other employees noticed a coworker named Jason always seemed to be high on drugs. Jason’s primary job duties included use and maintenance of the restaurant’s grease fryer. At first David and his fellow workers didn’t particularly care about Jason’s drug use, but they began to notice he was making mistakes, such as setting the fryer at temperatures well above its safety limits.
David approached the manager and told him he and his coworkers feared Jason’s errors could cause a fire. The manager didn’t want to lose a worker, and he dismissed David’s warning as an overreaction. Despite his coworkers’ advice and assistance, Jason continued to make errors. David went back to the manager again and expressed the employees’ concerns. This time the manager said he would speak with Jason, but he never did.
One afternoon, Susan (another employee) was working with Jason when the grease fryer exploded. She was showered with boiling grease, sustaining third degree burns on her face and arms. Susan filed a workers’ compensation claim, which paid her medical bills, out-of-pocket expenses, and two-thirds of her wages while she was recovering.
Susan also retained an attorney and filed a third-party lawsuit against the owner of the fast food restaurant. In her lawsuit, Susan claimed the manager’s failure to take corrective action rose above negligence, constituting gross negligence and a wanton disregard for her safety.
The court ruled in Susan’s favor and ordered the owner to pay Susan’s medical bills, out-of-pocket expenses, all her lost wages, and a substantial amount for her pain and suffering. Further, the court said the restaurant owner’s failure to properly supervise his manager’s actions merited an award of punitive damages. (Punitive damages are in addition to pain and suffering and are usually many times higher.)
Reimbursing Workers’ Compensation
Third-party lawsuits can take months or years before they settle or go to trial. In the meantime, workers’ compensation benefits may pay for medical bills and expenses. By law, when an injured employee receives an award from a lawsuit for those same injuries, he must reimburse the workers’ comp insurance company for its payments.
A third-party award is generally higher than the worker’s comp payments. The injured worker can keep the difference between the amount workers’ comp paid, and the amount he receives in settlement (minus attorney’s fees, if applicable).
The Role of Attorneys
You probably don’t need an attorney for your worker’s comp claim if you only sustained soft tissue injuries as a result of employee negligence. If your injuries are more serious and you believe they are disabling, you should seek the counsel of an experienced attorney as soon as possible.
You must retain legal representation if you decide to pursue a third-party claim against your employer. Only an experienced personal injury attorney has the knowledge and expertise required to build a successful case. They can conduct pretrial discovery and depositions, subpoena records, and even hire technical and medical experts.
Most workers’ comp and personal injury attorneys don’t charge for initial office consultations. If an attorney accepts your case, you won’t have to pay any legal fees in advance. You only pay if and when your attorney settles, or wins your case at trial.
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