When to File a Third-Party Lawsuit in Addition to a Work Accident Claim

Workers’ compensation won’t cover all your wages, pain and suffering. Learn how filing a third-party lawsuit in addition to a work accident claim will get you the most money.

Employees who become ill or injured because of their job are entitled to workers’ compensation insurance benefits (“workers’ comp”) to cover medical and rehab costs and replace a portion of their lost wages.

There are no worker’s comp benefits for full wages, or pain and suffering.

For most injured workers, the trade-off for the protection of workers’ comp insurance is not being allowed to sue their employer for the work-related injury. But there are exceptions. Some employers don’t provide workers’ comp coverage for their employees. The injured worker must go after the employer for compensation.

Another person or company, not your employer, who caused the circumstances leading to your injuries or illness, is called a third-party.

In most cases, employees injured by independent third parties can file workers’ compensation claims and also file a separate third-party negligence lawsuit against those who caused the injuries.

Establishing Grounds for a Third-Party Lawsuit

Standard workers’ compensation insurance is “no-fault insurance,” meaning workers can file a claim to receive medical and limited wage benefits for a work-related injury without having to prove the employer did anything wrong. It’s easier for the injured worker, but won’t fully compensate the worker for severe injuries.

To win a third-party lawsuit, you’ll have to prove the third-party was negligent, meaning they did something wrong or failed to do something that caused your injuries. Your lawsuit must prove:

  • You had a work-related accident
  • The third-party owed you a duty of care
  • The third-party failed in their duty of care
  • Your suffered injuries
  • The work-related accident caused your injuries

It may sound like a lot of steps, but you’ll be showing that the third-party created a situation that led to your illness or injury, and if not for that situation, you would not have been hurt.

Don’t wait to talk to an experienced personal injury attorney to find out who can be held responsible for your injuries, and the true value of your work-related injury claim.

Common Work Accidents Caused by Third-Parties

Unlike workers’ comp claims, where you can only recover a portion of your lost wages and direct medical expenses, in a lawsuit against a negligent third-party you have the opportunity to recover all of your lost wages and overtime, future lost income, the costs of replacement services, and a significant amount for pain and suffering.

Here are some of the most common work-accident situations caused by third-parties.

Car Accident During Work Time

You can be a professional driver,  driving to meet a client, or simply running an errand for your boss, but if you’re injured in a car accident that wasn’t your fault, you should be eligible to file a workers’ compensation claim and file a third-party lawsuit or claim against the person who caused the accident.

Example: Delivery Man Hit by Drunk Driver

A delivery man on his work route is struck by a drunk driver and seriously injured.

The delivery man is entitled to collect workers’ compensation benefits and to pursue a personal injury claim against the drunk driver and his auto insurance company.

However, the injured worker is only covered by workers’ comp insurance for medical benefits and partial wage reimbursement.

The delivery man files and wins a lawsuit against the drunk driver, demanding the cost of all his medical bills, out-of-pocket expenses, full lost wages, lost bonuses, and compensation for his significant pain and suffering.

After reimbursing workers’ comp for the amount he received for medical expenses and a percentage of his wages, the delivery man keeps the remaining amount.

Construction Site Accidents

On construction sites, the General Contractor is responsible for the safety of the job site. If you’re working for a subcontractor and are injured on the job, you may have grounds to pursue the General Contractor in a third-party lawsuit.

For example, if you’re a painter and get electrocuted because of untagged live wires, the General Contractor could be liable for your injuries for failing to comply with OSHA rules for electrical wires.

Property Owner Negligence

If you are working on property not owned or managed by your employer, you may have grounds for a third-party lawsuit against the property owner if you are hurt because of dangerous conditions on the property.

Example: Failure to Remove Ice From Steps

Sandra was a visiting nurse, assigned to care for a client on the second floor of an apartment building.  She arrived on time, carrying her medical supply bag and cell phone.

The apartment building steps were still icy from a winter storm the day before. Afternoon shadows made it hard to see the ice for someone not familiar with the Building.

Sandra slipped on the ice and fell, breaking her right arm, splitting open her chin,  and dislocating her right knee. She was unable to return to work for more than six months and was left with permanent facial scars.

In addition to her workers’ compensation claim, Sandra and her attorney brought a successful third-party lawsuit against the apartment building management company for breaching their duty of care by failing to clear ice from the steps.

Defective Products

An employee who receives benefits from his employer’s workers’ comp insurance may also file a third-party lawsuit against the manufacturer of a defective product that caused the 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 is driving a front-loader at a lumber yard while several co-workers are nearby. The driver of the front-loader finishes loading timber onto a company truck, sets the brake and climbs off.

The front-loader then rolls forward, crushing the legs of one of the other employees. An investigation finds that the front-loader has a defective hydraulic brake system.

In addition to workers’ compensation, the injured employee has grounds for a defective product claim against the manufacturer of the front-loader.

Toxic Substances

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 was aware of the existence of a toxic substance and failed to have it removed, you may also be entitled to sue your employer.

Third-Party Lawsuits Against Individuals

When you’re injured on the job by a co-worker, an irate customer, or anyone not directly associated with your employer, you have the right to file a lawsuit against the person who caused your injuries in addition to filing a work accident claim.

If you’re assaulted on the job by a co-worker, customer, or during a robbery, you may have grounds for filing a lawsuit against your employer as well as the person who hurt you.

For example, your employer may be liable if you are hurt by a co-worker who goes berserk and hits you in the face, and it’s not the first time the person acted violently at work. The employer should have known the person was dangerous and therefore the employer was negligent for not providing a safe work environment.

When You Can Sue Your Employer

Generally, employers who provide workers’ compensation insurance coverage for their employees can’t be sued for job-related injuries to workers.

You can bring a lawsuit against your employer when:

Employer Has No Workers’ Compensation Insurance: If your employer fails to carry state-mandated workers’ comp insurance, you may file a lawsuit 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, in a lawsuit you will seek to recover all of your damages, including full wages, future wages, and pain and suffering.

Gross Negligence By the Employer: Even if your employer carries workers’ compensation insurance, you may be able to sue for a work-related injury when you can prove it was caused by your employer’s willful, wanton, gross or reckless negligence.

For example, when exposure to toxic substances injures a worker, and the employer was aware of the dangers and failed to provide protective clothing, respirators, or otherwise failed to protect workers from poisoning, the employer is grossly negligent.

Employer Assault: Workers’ comp insurance won’t 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, the injured worker can also seek punitive damages.

Additionally, any employer who assaults an employee may face criminal charges.

Keep in mind, employers are not liable for damages when the employer struck the employee in self-defense. Workers who start a fight on the job and end up injured won’t be eligible for workers’ comp or any other compensation.

Important Workers’ Comp Financial Issues

“Subrogation” and Third-Party Claims

When you’ve been collecting workers’ compensation benefits, and later win your third-party lawsuit, you will almost certainly be required to reimburse the workers’ comp benefits already paid to you.

Most states allow insurance companies, including your medical insurance provider and workers’ comp insurance provider, to get back what they spent on you from your settlement with the negligent third-party. This is known as “subrogation.”

The employee keeps the remaining amount, such as awards for pain and suffering, that weren’t covered by workers’ comp or by your medical insurance provider.

Subrogation, punitive damages, cross-complaints – these are all complicated issues that come up in lawsuits against employers and big companies.

You don’t have to face them alone and unarmed. Reputable attorneys don’t charge injured workers for the initial consultation. You have nothing to lose and everything to gain.

Uninsured 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.

To be eligible to receive benefits from a state fund, your injuries must be the type normally covered under a standard workers’ comp policy if your employer was insured.

Contact the workers’ compensation office in your state to find out how to apply for benefits 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.

In most cases, you can sue your employer, although you may have to refund a portion of monies paid by the state’s fund.

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Third-Party Lawsuits and Workers' Comp Questions & Answers

Charles R. Gueli, Esq. is a personal injury attorney with over 20 years of legal experience. He’s admitted to the NY State Bar, and been named a Super Lawyer for the NY Metro area, an exclusive honor awarded to the top five percent of attorneys. Charles has worked extensively in the areas of auto accidents,... Read More >>