When you’re injured by a negligent coworker, you may be entitled to more than workers’ comp. Here’s how to get the compensation you deserve.
The average worker spends a large part of their waking hours on the job, working alongside other employees.
No matter how much you like your job and the people you work with, accidents happen. Over 800,000 workplace injuries happen to American employees each year.¹
Employee negligence and errors are one of the leading causes of on-the-job injuries. Eligible employees are entitled to workers’ compensation insurance benefits if a co-worker caused their injuries.
Depending on the circumstances, the injury victim can also pursue compensation directly from the at-fault coworker.
Start with Workers’ Compensation
An employee 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 workplace 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 treatment, out-of-pocket expenses, and approximately two-thirds of a worker’s lost wages. Workers’ compensation does not pay for pain and suffering.
You can still be eligible for workers’ comp if you’re injured off-the-clock, so long as you were following the instructions of your supervisor for a work-related activity or acting in the interest of your employer.
You may not be eligible for workers compensation if you were:
- Commuting back and forth from home
- On a lunch break
- Engaged in criminal activity
- Under the influence of drugs or alcohol
Under some states’ workers’ compensation laws, your workers’ comp claim could be denied if you’re hurt while you and another employee are “horsing around,” unless that kind of behavior is common in your workplace and your employer hasn’t corrected it.
Suing the Negligent Co-Worker
When you’ve suffered a work-related injury, you can be facing months of recovery, and in some cases may be left with a permanent disability. Workers’ compensation insurance coverage only pays your medical bills and a portion of your lost wages, up to certain limits.
When you’re injured by a negligent coworker, you have the right to file a personal injury claim or lawsuit for full compensation for your injuries.
In a personal injury lawsuit, you can seek to recover all your damages, including:
- Medical expenses
- Replacement services, like lawn care
- Consortium claims from your family
- The full amount of lost wages
- Pain and suffering
When you file a personal injury lawsuit, the burden will be on you to prove that your coworker did something wrong, or failed to do what they were supposed to do. You’ll have to show that the coworker’s error or failure is the direct and proximate cause of your injuries.
In other words, if it wasn’t for your coworker’s negligence, you wouldn’t have been hurt.
Unfortunately, even if you win your lawsuit, the at-fault employee may not have the financial assets to cover all your damages.
When You Can Sue Your Employer
Injured workers usually can’t sue their employer. That’s the trade-off for the availability of workers’ compensation insurance.
Under certain conditions though, a worker can file a lawsuit against their employer in addition to worker’s compensation. The first condition is a serious injury, such as fractures, head trauma, serious burns, scarring, or amputations.
No matter how upset with a coworker or your employer you might be, soft tissue injuries like pulled muscles, minor burns, abrasions, and bruises aren’t serious enough to justify a lawsuit.
To successfully sue your employer when injured by a coworker, you’ll also have to prove that your employer knew the coworker posed a danger to others and the employer failed to act to protect other employees.
Talk to a personal injury attorney to see if it makes sense for you to sue the at-fault coworker or your employer.
Employer’s Duty of Care
Employers who become aware of a worker’s job-related errors normally have no legal duty to intervene, discipline, relocate, or terminate that worker.
The employer’s legal duty to take action changes when they find out an employee’s negligence jeopardizes the health and safety of other workers, for example, if the employee’s actions create OSHA workplace safety violations.
Your lawsuit 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 of gross negligence or a wanton disregard for workers’ safety.
Proving Gross Negligence
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.
Example: Burn Injuries Caused by High Coworker
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 the use and maintenance of the restaurant’s grease fryer.
David and his fellow workers noticed Jason was starting to make dangerous mistakes, such as setting the fryer at temperatures well above its safety limits.
David told the manager that 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, Jason again made a dangerous mistake, causing the grease fryer to explode. His coworker, Susan, was showered with boiling grease, severely burning her face, hands, and arms.
Susan filed a workers’ compensation claim, which paid for her medical care and part of her wages during her long recovery.
Susan also retained an attorney and filed a lawsuit against the owner of the restaurant. In her lawsuit, Susan claimed the manager’s failure to take corrective action against Jason rose above negligence, constituting gross negligence and a wanton disregard for her safety.
The court ruled in Susan’s favor and ordered the employer to pay all of Susan’s expenses, a substantial amount for her pain and suffering, and an additional large amount of money for punitive damages.
Reimbursing Workers’ Compensation
Lawsuits can take months or years before they settle or go to trial. In the meantime, workers’ comp will pay for medical bills and some lost wages. By law, when an injured employee receives an award from a lawsuit for those same injuries, workers’ comp is entitled to reimbursement of those payments.
Court awards and lawsuit settlements are generally much higher than worker’s comp payments, so the injured worker will receive more overall compensation than with worker’s comp alone.
Getting the Most Compensation
You probably don’t need an attorney for your workers’ compensation case if you only sustained soft tissue injuries from a coworker’s negligence. If your injuries are serious or potentially disabling, you need to talk to an injury lawyer as soon as possible.
You’ll need expert legal representation if you decide to file a lawsuit against the at-fault coworker or your employer. Your attorney can perform an assets check to determine if the at-fault coworker has the financial ability to pay for your damages.
If you sue your employer, only an experienced personal injury attorney has the expertise to build a winning case and defeat the objections that are sure to come from your employer’s legal team.
Your financial future may be on the line after a serious workplace injury caused by a coworker. Don’t trust the insurance company to pay you what’s fair. It won’t cost you anything to find out the true value of your claim, and what a good attorney can do for you.
How Much is Your Injury Claim Worth?
Find out now with a FREE case review from an attorney…
Injured by Coworker Questions & Answers
I work on a drilling rig. I was up in the derrick (about 130 feet from the ground) and my driller picked up the top…
In November 2008, I was doing my job at a warehouse store distribution center. I was labeling product when another employee on an EPJ (electric…