Work Accident Claims vs Third-Party Personal Injury Claims: Can You File Both?

You can file a personal injury claim in addition to a workers’ comp claim when a third-party caused your work injury. See common examples of how it’s done.

Eligible employees who become ill or injured on the job are entitled to workers’ compensation insurance benefits no matter who caused their injuries. Workers’ comp provides medical and wage replacement benefits, but doesn’t pay for other damages, like pain and suffering.

When a person or company not connected with your employer caused your injuries or illness, they are called a third party.

Even if you’re getting worker’s comp benefits, you have the legal right to file a personal injury claim against the at-fault third party. In a personal injury claim or lawsuit you can seek full compensation for all your losses.

When a Work Injury is Also a Personal Injury

When a worker is injured in the course of their duties by circumstances beyond the control of their employer, a negligent third party is often to blame. Some of the most common causes of job injuries caused by third parties are car accidents, slips and falls, and injuries caused by defective machinery or tools.

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.

Most personal injury lawyers offer a free consultation to injury victims. There’s no obligation and it costs nothing to get legal advice about the value of your claim and pursuing a third-party injury claim.

Car Accident During Work Time

You can be a delivery 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 personal injury claim against the at-fault driver.

Example: Delivery Person Hit by Drunk Driver

Roger was on his package delivery route when he was hit head-on by a drunk driver and seriously injured. Roger’s left leg was broken and he required emergency surgery for a ruptured spleen. Roger was out of work for several months.

Roger’s medical expenses were covered by his employer’s workers’ compensation insurance. He also received wage replacement disability benefits at about two-thirds of his pre-accident income until he was able to return to work.

Through his personal injury attorney, Roger filed a third-party injury claim with the at-fault driver’s insurance company, demanding $275,000 for his medical treatment, lost wages, lost overtime, pain and suffering, and the cost of replacement services for yard work that Roger could not do himself.

Roger’s claim settled out of court for the $250,000 policy limits. After reimbursing workers’ compensation and paying his attorney fees, Roger was still left with a significant amount of money to compensate him for his ordeal.

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 personal injury case against the property owner if you are hurt because of dangerous conditions on the property.

Example: Visiting Nurse Falls on Icy 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.

Workplace Injuries Caused by Defective Products

Many industrial accidents are caused by malfunctioning machinery, tool, or safety equipment.

An employee who receives benefits from his employer’s workers’ comp insurance may also file a product liability lawsuit against the manufacturer of a defective product that caused the injury.

Example: Defective Forklift Injures Worker

Ernest was driving a forklift at a lumber yard while John and other co-workers were nearby. After loading timber onto a company truck, Ernest set the brake and climbed off.

The forklift then rolled forward, crushing John’s legs against the truck. An investigation found that the forklift had a defective brake system.

In addition to workers’ compensation, John has grounds for a third-party defective product claim against the manufacturer of the forklift.

Illness or Injury from Toxic Substances

You may have the right to file a third-party lawsuit against the manufacturer of a toxic substance that causes an occupational illness or injury. Toxic substances can include poisonous fumes, lead-based paint, asbestos, and other substances which directly or indirectly cause serious injuries.

For example, a construction worker who developed cancer after spending years installing asbestos insulation may be able to file a third-party personal injury lawsuit against the insulation manufacturer for damages.

Wrongful Death Lawsuits

Family members of a worker who died because of the negligence of a third party have the right to file a wrongful death claim against the third party, in addition to any survivor benefits they may receive from workers’ compensation insurance.

Proving a Personal Injury Claim Against a Third-Party

Standard workers’ compensation insurance is “no-fault insurance,” meaning workers can file a claim to receive medical care 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 them 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 would have prevented your injuries.

Your lawsuit must prove:

  1. You had a work-related accident
  2. The third-party owed you a duty of care
  3. The third-party failed in their duty of care
  4. Your suffered verifiable injuries as a direct result

It may sound like a lot, 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 attorney to find out who can be made to pay for your work injury, and the true value of your claim.

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. However, most state workers’ compensation laws allow employers to be sued in limited circumstances.

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.

Employer Has No Workers’ Comp 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 treatment and partial lost wages, in a lawsuit you will seek to recover all of your damages, including full wages, loss of earning capacity, and pain and suffering.

Important Workers’ Comp Financial Issues

The distinction between an injury and a disability can be a bit confusing with workers’ compensation claims. Worker’s comp has four categories of wage benefits based on the injured worker’s “disability” status.

The four categories of disability are:

  • Temporary Total Disability completely prevents you from working for a limited amount of time.
  • Temporary Partial Disability prevents you from doing some, but not all of your job duties for a limited amount of time.
  • Permanent Total Disability prevents you from ever returning to work in any capacity.
  • Permanent Partial Disability is a permanent injury that impairs your ability to work at the job you had before the injury.

With personal injury claims outside of worker’s comp, the term “disability” is commonly understood to mean a permanent injury that affects a person’s daily living, but not necessarily their ability to hold a certain job.

Subrogation and Third-Party Claims

When you’ve been collecting workers’ compensation benefits, and later settle your third-party claim, 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 wasn’t covered by workers’ comp or by your health insurance provider.

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

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 >>