Workers Compensation Claim or Lawsuit
People who are injured in the workplace generally are compensated through the workers compensation system. For most workers, it is difficult to file a lawsuit against your employer, unless discrimination and some other limited factors is involved. An exception, covered below, is if you were hurt because of egregious or intentional conduct by your employer. But to recover medical costs and other expenses related to a work injury, workers compensation is usually the best option.
This article describes the workers compensation system, how to file a claim, and the circumstances under which you can file and win a workers compensation lawsuit. After reading this article, it is advised to consult a workers compensation attorney to determine the best legal path forward for your claim.
No Fault and Workers Compensation
In all US states, the workers compensation system is designed to be no fault. This means it does not matter if the negligence of your employer contributed to the injury or occupational disease. What is important is that you suffered an injury or occupational disease during your employment. Also, your personal negligence generally does not preclude getting workers compensation benefits.
The no fault system has been set up to protect employers and workers. The purpose is to protect companies from expensive lawsuits and to protect workers by ensuring they receive timely medical care and compensation for their time off work.
Workers compensation generally can be paid for the following types of work situations:
- Injuries that happen on company property or at an employer event
- Injuries that are due to employer equipment
- Injuries that come from exposure to dangerous conditions
- Affliction to a preexisting condition or injury
Remember that fault does not need to be proven in a workers compensation case. You and your attorney merely must show that you were injured during your employment and have a certain level of medical bills and lost wages. But if you intend to file a lawsuit against the employer, you will need to show the employer was at fault. You only can get pain and suffering damages in a personal injury lawsuit, not in a workers compensation claim.
Recovery and Workers Compensation
Recovery is how much money you receive for medical treatments for your work-related injury or occupation-related illness. Because this is a no fault system, the recovery to which you are entitled is limited. You generally cannot file a lawsuit against your employer, so you are not eligible for punitive damages. But in many cases, workers compensation benefits can be generous. Washington state, for example, has rather lavish workers compensation benefits; Texas on the other hand, is less generous in this regard.
Workers compensation benefits include the following:
- Lost pay – including past and future
- Medical cost reimbursement
- Disability benefits
- Can also include death benefits if your loved one was killed on the job
Depending upon the injury, there are four major types of disability you could receive after a workers compensation claim:
- Temporary total disability. This is for an injury that prevents you from being able to work at all for a limited time; your benefits will last until you can return to work.
- Temporary partial disability. This is an injury that prevents you from doing some of your work for a limited period; benefits last until your doctor states you can do all your normal job duties.
- Permanent total disability. This is for an injury that prevents you from returning to your job permanently and limits your ability to work in a similar job.
- Permanent partial disability. This is a permanent work injury that partially prevents you from doing your job duties.
Workers Not Covered By Workers Compensation
Not all American workers are covered by workers comp. Volunteers, freelancers and independent contractors are not covered. Business owners, sole proprietors and business partners are not eligible either. However, if the negligence of the company or person caused your injury, you still may be able to file a personal injury lawsuit.
A major area of contention in workplace accident cases is whether the worker is an employee or an independent contractor. Some companies may attempt to classify the injured person as an independent contractor to avoid paying for workers comp benefits.
Other types of workers that generally are not eligible for workers compensation are:
- Part time domestic workers – nannies and maids
- Taxi drivers
- Some types of agricultural workers
- Seasonal workers (depends upon the case and how much they work in a year)
- Part time maintenance workers or gardeners
When Can You File a Workers’ Compensation Lawsuit?
For covered employees, you usually can only file a workers compensation lawsuit in very limited situations. One of the major circumstances is if the employer intentionally intended to hurt you. But for most cases besides this, you must go through the workers compensation claim system. Even in a case where the company was grossly negligent, such as they did not repair a ladder that led to your broken arm, this is not adequate to file a lawsuit. To win a private suit that alleges intentional harm, you need to prove the employer acted with intent to harm you – an intentionally harmful act.
While filing a workers compensation lawsuit is usually not possible, there are many exceptions where it may work. Below are a few examples. Talk to a workers compensation lawyer in your area for details about your specific case:
- If you were hurt because of a toxic substance, you could file suit against the manufacturer of the substance (see more in next section)
- If you were hurt by another defective product, you may file a lawsuit against that company (see more in next section)
- If the employer does not carry workers comp insurance, you may be able to sue in civil court
Some other possible situations where you can sue your employer for a workplace injury are for:
- False imprisonment
- Intentional infliction of emotional distress
- Invasion of privacy
Also, if you are a worker on a cruise ship or crewmember of any type of vessel, you are covered by the Jones Act and can sue your employer for damages if you are hurt on the job.
Interstate railroad workers are covered by the Federal Employers Liability Act and can sue for damages if hurt on the job.
Workers compensation can offer you some money and benefits, but payments for temporary or permanent disability are often paltry. They also do not compensate you for your pain and suffering. You also do not receive punitive damages for dangerous or unsafe work conditions.
Lawsuits Against Third Parties
In some accidents, you may successfully file a personal injury lawsuit against a third party who is partially at fault for your injury. For instance, if a defective forklift at work injured your foot, you may file suit against the product manufacturer. This would be in addition to filing a workers compensation claim. This would allow you to potentially obtain a larger recovery, including possible punitive damages.
Another example of a possible third-party lawsuit is in an auto accident lawsuit. If you were driving during your employment and are hurt in an accident, you could have a workers comp claim and a personal injury lawsuit against the driver who injured you.
Toxic Substance Injury
A common workplace accident is where a toxic chemical or substance causes injuries or burns. Some of these dangerous substances include benzene, chromium-based solvents, silica, radium and asbestos. But any substance on the job that hurts you could be the basis of a ‘toxic tort’ lawsuit.
There are two types of toxic workplace injuries. The first is an acute injury that is obvious immediately, such as a chemical burn. The other is a latent injury that takes years to show up. A common latent injury is lung cancer and mesothelioma that can be caused by extensive exposure to asbestos fibers. Because of the long-time delay, latent injuries are challenging to prove, but not impossible.
Workers have been frequently successful in recent years winning settlements from companies for exposing them to harmful substances that resulted in latent injuries. Asbestosis and mesothelioma lawsuits are often successful because it has been clearly shown that these conditions only result from asbestos exposure. If you are injured by a toxic substance at work, you can often sue the product manufacturer and any maker of safety equipment that was ineffective in protecting you from the toxic substance.
Defective Product Injury
If you are injured by a piece of equipment at work that did not work right, was defective or was inherently dangerous, you may be able to file a lawsuit against the product manufacturer. The key is to show that the company knew of or should have known of the danger and did not warn the business or employees. In this case, the product manufacturer may have to pay the worker for pain and suffering, medical costs and lost wages.
For example, say a worker uses a punch press machine that puts holes in boxes. The worker puts his hand inside the press to adjust the box, but the foot petal sticks that stops the press. The press crushes some of his hand. The worker can probably collect workers compensation and have a product liability case as well.
Frequently Asked Questions
Can I sue workers comp for negligence?
Work comp lawsuits are generally taken up with the insurance company that’s paid by your employer, not the employer themselves. However, in certain cases of serious negligence, a lawsuit may be filed against the employer directly. Examples of this would be extremely dangerous working conditions that resulted in injuries, or prolonged exposure to toxic chemicals (i.e. asbestos) that caused chronic and/or deadly health conditions.
Depending on the scenario, there may also be a lawsuit filed against a third party – for example, let’s say a vendor was moving a piece of heavy equipment into the office where you work, and it tipped over and fell on your foot, causing major injuries and causing you to have surgery on your foot. You would have a potential personal injury lawsuit against the third party, in this case your vendor, to recoup your losses in for medical bills, loss of income, and pain & suffering.
Can you sue if you accept workers compensation?
Generally, no, with limited exceptions. When you are hurt on the job, you usually recover compensation only through workers compensation. Employees in all states are covered under workers compensation rules at the federal or state levels. Thus, you usually cannot file a personal injury lawsuit in addition to taking workers compensation. The exceptions to this rule are:
- Your employer tried to intentionally harm you. For instance, if your supervisor punched you in the face, you could theoretically sue for damages in addition to taking workers compensation. But the punch in the face must have been intentional; if it was an accident, it was not intentional harm and does not qualify.
- Fraud: Someone at the job lied to you and you suffered an injury
- Defamation: Someone at work said something untrue about you that caused you harm
- Intentional infliction of emotional distress: You were emotionally traumatized on the job by extremely bad behavior
- Your employer does not have enough workers compensation insurance. If your employer did not carry enough insurance to properly compensate you, it is possible you can file a lawsuit to make up the difference.
Another major exception is if you are injured at your place of employment by a third party. If the injury was caused by defective equipment that the other company produced, you can file a separate lawsuit against that company.
If you are eligible to file a lawsuit, it is important to consult with a personal injury attorney as soon as you can. Your attorney will be able to confirm if you can file a lawsuit in addition to seeking workers compensation. But most cases of workplace injury do not allow for these types of lawsuits.
Can you sue workers comp for pain and suffering?
Unfortunately, it is almost impossible to recover pain and suffering compensation through workers comp. It may be possible in limited situations to recover some money for emotional distress. But in almost all state workers compensation laws, the employee may not sue the company for pain and suffering compensation. The only benefits to which you are entitled through workers compensation are wage-loss benefits and medical expenses for your injuries on the job.
However, if a third party was responsible for the injury, you might be able to be compensated for your pain and suffering by suing the third party. A third party is a person or company other than your employer who could be liable for your injuries. This might be a co-worker, contractor or the manufacturer of equipment that caused your injury.
There have been a few workers comp claims where pain and suffering were obtained, however. One possibility is when a claim is filed under the Federal Employee Liability Act. In this case, it is possible to get an award for pain and suffering. Also, some states, such as California, allow claims for emotional distress, but not pain and suffering. But in most states, no recovery for your pain and suffering is possible through workers compensation.
Can you lose your job while on workers comp?
Your employer is not required to keep your job open while you are getting workers compensation. You can be fired or laid off. This can happen in some cases where work restrictions are preventing you from going back to work for several months. Many employers will try to keep your job available, but at some point, they may need to bring in someone else.
It is helpful for your cause if you communicate regularly with your employer while you are off work. If you do that, it is more likely they will hold your job for you. Make sure you keep the company informed about your health situation and when you can return to work.
Also, if you do come back to work, you are not assured an exact job or pay rate.
But you cannot be fired for claiming workers compensation. This is illegal and you can get more compensation in this case, above and beyond what you are entitled to for workers compensation.
What is the average settlement for a work related back injury?
One of the most common injuries reported in workplace accidents is a back injury. Workers who file claims for back injuries through workers compensation are likely to receive at least some amount of compensation. Recent surveys on this matter found that 74% of workers surveyed got workers compensation. This was done either via a voluntary settlement with the company or through a worker’s compensation hearing. Just 26% of workers who had back injuries did not get an award or settlement.
Surveys show that workers with back injuries who get a settlement in workers compensation receive an average of $23,600. This is slightly higher than the average compensation for workers with all types of injuries – $21,800.
Workplace back injuries can range in severity, so the amount you receive can be much higher or lower than the above figures. Injuries may range from mild strains that only need physical therapy, to herniated discs that need major surgery and months of recovery time.
Surveys also show that 68% of workers with back injuries received $20,000 or less, but the remaining 32% of workers got higher settlements. Six percent got from $20,000 to $40,000, while 17% received between $40,000 to $60,000. Nine percent got more than $60,000.
Workers with back injuries do get more compensation on average compared to other injuries, but their cases take longer to resolve. On average, it takes 18 months for workers with these injuries to resolve their cases. This is approximately two months longer than it takes to resolve cases for those with other injuries. It could be because those with back injuries get medical treatment for a longer time and take longer to reach the point of maximum medical improvement. There is a noted example online where a worker who had a back injury in 2009 did not settle the case until 2014 because of medical treatments that were still ongoing years later.