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When Workers’ Comp Isn’t Enough, Can You File a Lawsuit?

  • You’ve been injured on the job and filed for workers’ compensation insurance through your employer. However, while workers’ comp may cover your current medical bills and lost wages, it probably won’t cover all your damages if you have been severely injured. Can you file a lawsuit to recoup compensation for your damages instead of, or in addition to, filing a workers’ compensation claim?


    Suing Employers Outside of Workers’ Compensation


    Workers’ compensation is intended to pay for medical treatment and lost wages for injured employees. If an employer carries it, which most are required to do with some exceptions that vary by state, injured employees are usually barred from suing the employer. In essence, workers’ comp is designed to protect employers from personal injury lawsuits, because it covers medical bills and lost income for workers.


    There are some exceptions to the rule, but they can be difficult to prove. If you believe that your employer intentionally caused your injuries, you may be able to sue the employer. What constitutes intentional conduct, though, varies by state, so it is a good idea to talk to a personal injury attorney where you live to help you discover whether you might have a viable intentional injury lawsuit. In some states intentional conduct by an employer must rise to the level of physical assault, while in others employers who knew about dangerous conditions that were almost certain to cause injuries, but didn’t correct them, may be liable.


    There may be other exceptions, depending upon where you live, as to when you can sue employers outside of workers’ compensation. For example, a couple of states allow lawsuits in cases where employers sought to cover up employee injuries and their intentional cover-up caused the injury (or illness) to worsen.  


    Understanding Third-Party Liability Claims


    Another area where you can sue outside of workers’ compensation is when a negligent third party caused your workplace injury. A third party is a person or entity besides your employer who was directly responsible for your injuries. Some examples of third parties are:


    • Product and toxic substance manufacturers—Perhaps a faulty shop-floor machine injured you or a toxic substance caused your illness.
    • Subcontractors—Maybe a subcontract worker on a construction site dropped a hammer or other tool that hit you and caused an injury.
    • Vendors—Imagine that a delivery truck driver for a company vendor drove onto your workplace grounds and negligently hit you.
    • Drivers—Perhaps you were in a crash caused by a negligent driver while driving on company business.


    In third-party liability cases, you may be able to file both a workers’ compensation claim with your employer and a third-party lawsuit. Workers’ compensation is intended to cover medical treatment costs and lost wages, but it doesn’t cover damages such as pain and suffering and other things.


    If you are successful in receiving compensation in a third-party lawsuit and you had also previously received workers’ comp for your injuries, you will most likely be required by state law to reimburse workers’ compensation insurance for what it has spent on you. The amount can sometimes be negotiated. However, often contracts between companies include a waiver of subrogation. This waiver still allows you to sue the third party, but if subrogation has been waived between your employer and the third party, your employer’s workers’ comp insurance company may not be able to seek reimbursement from you. Subrogation and waivers of subrogation are complex areas that a skilled workers’ compensation attorney can review and advise you about as it relates to your case.


    Consider Consulting with an Attorney in Your State


    It is always wise to consult with an attorney when you’ve been injured on the job, especially in cases of serious injury. An experienced workplace injury attorney in your state can help you determine who to hold responsible for your injuries and how much your injuries may be worth.