Workers Compensation 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 Facts

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:

  • Battery
  • Assault
  • False imprisonment
  • Intentional infliction of emotional distress
  • Fraud
  • Defamation
  • 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

If you are hurt at work, you will wonder how much you can get for a workers’ compensation claim. As part of a typical claim, you are usually entitled to these benefits: 

  • Weekly compensation
  • Permanent impairment compensation
  • Medical bill payments
  • Work rehabilitation

First, note that workers’ compensation laws do not provide compensation for your pain and suffering. States have passed these laws to protect workers’ income only. If you have an injury from work and cannot do your job, you will receive weekly compensation, but nothing for pain and suffering. 

Weekly Compensation

You can get weekly compensation for temporary total disability; temporary partial disability; permanent total disability, or permanent partial disability. 

Temporary disability means you are still recovering but you should get better. Permanent disability means your condition is stable but it will not improve. 

Total disability means you cannot work in any type of job. Partial disability means you have some ability to work, perhaps sedentary or light duty jobs. 

Your weekly benefit for total disability usually will be 60% of your pre-injury average weekly salary. But most states cap the weekly benefit at $1000 per week. 

For partial disability, you will receive less because you are still able to perform some type of work. 

If you have a permanent impairment, your payment will be based on how much the injured part of your body is impaired. If your doctor says your hand injury results in a 20% permanent impairment, you would receive 20% of whatever your state law allows for complete loss of a hand. If the full amount is $100,000, you would receive $20,000. Some states also will allow you to receive compensation for scarring from a workplace injury. 

You also are entitled to have all ‘reasonable and necessary’ medical treatments paid for, which can be contentious between you and the workers’ comp insurer. It may be necessary to hire an attorney to represent you here. 

You also can be paid for vocational rehabilitation so you can be retrained for another job. 

Yes. It is possible to collect workers’ compensation after you quit, are fired or laid off. But you may face additional hurdles to prove that you qualify for workers’ compensation. 

There are usually two reasons to file a workers’ comp after you leave a job: 

  • You had an injury at work that you thought was minor but has gotten worse and now requires medical treatment. For example, you might have hurt your back at work and thought it was minor. But as the weeks go by, the injury gets worse. 
  • You have a chronic health problem, such as a cumulative injury that you got from previous work. For example, your physician may tell you that the pain in your wrist is from a repetitive injury from your old job. It is common for symptoms for repetitive injuries to show up after you leave a job. 

Meeting Deadlines to File Your Claim

Most states have strict time limits to report a work-related injury to the employer and to file a claim. The same limits are in effect whether you still are at the job or left. But some time has probably passed, so there is a chance you could miss the deadline. 

That is why it is important to notify your employer as soon as possible if you are injured at work. You should give notice within 30 days after the event happened. If you did not report the injury until later, your claim will be denied, whether you are still at that job or not. 

For a chronic or cumulative injury, the time period to file does not start until you first learn that your current or old job caused the problem. 

You will need to have strong medical proof that your current medical problem was caused by duties at your previous employer. 

First of all, remember that workers’ compensation cases require approval from the State Board of Workers’ Compensation from the state you live in, which can take time. 

Second, no matter how injured you say you are, you cannot force your company’s workers’ compensation provider to settle your case. They also cannot force you to settle. 

To come to an agreement so you can get paid, you or your lawyer need to negotiate a fair settlement. Before you think about settling, you should ensure you really understand what goes into a settlement. Or, hire an attorney to handle this for you. It can be worth it financially to hire a lawyer so you can obtain the most compensation possible. 

Once you have settled the case and it has been approved by the state board, it is then final. It cannot be changed later. 

If all of this sounds like it could take time, you are right. First, you need to negotiate the settlement and send it to your state board. Assume that the board approves the compensation settlement. From there, it usually takes 30 to 60 days until the insurance company pays the settlement. Some cases do not take that long, and others with more serious injuries could take even longer. 

Major factors that affect the timeline are: 

  • The time it takes to prepare the settlement paperwork
  • Time it takes to agree on changes to paperwork language
  • Time it takes for the state board to review the settlement paperwork
  • How long it takes the workers’ comp insurance company to pay you. 

The insurance company has 20 days from settlement to pay you. If they fail to do so, they have to pay you ao 20% late penalty. 

If you are hurt or get sick on the job, you could be eligible for workers’ compensation. The first requirement to get workers’ comp coverage is for the injury to have occurred at work, and this must be proven. Many injuries are straightforward and it is clear the injury occurred on the job, but some injuries are harder to prove. 

Below are the work-related injuries that usually are eligible for workers’ compensation: 

  • Repetitive motion: Overuse or repetitive motion injuries can be very painful and debilitating. They are not caused only  by using a keyboard or mouse all day. Factory workers, office workers, and others can develop repetitive motion injuries such as carpal tunnel syndrome, back pain, tendonitis and more. 
  • Occupational illness: These illnesses can range from black lung disease to mesothelioma to AIDS/HIV and many other.s But there needs to be strong evidence that the illness was caused by work. 
  • Pre-existing condition: If you have an old back injury aggravated by activity at work, this could be covered. 
  • Loss of hearing: Workers in noisy environments can lose their hearing, and this can be covered by workers’ comp. 
  • Stress-related injury: Some states allow you to get payment for stress-related injuries, but they can be hard to prove. PTSD can be covered in some states, but the event must have been something immediate and traumatic, such as a teacher dealing with a mass shooting. 
  • Stress from work-related physical injury: When a workers suffers a physical injury at work and develops an emotional or mental health problem afterward, this can be covered by workers’ compensation. 

An interesting aspect of workers’ comp is that it is a no-fault system. Even if the employee was partially at fault for his injury, the fact that it occurred at work means it still can be covered 100% by worker’s compensation. 

Most people think of workers’ compensation as one policy, but there are actual two parts, and each has limits. 

Part A is the workers’ compensation part of the program. This provides compensation to the worker who is hurt or made ill as a result of their job. Part B gives liability coverage to the employer. This part provides the company with protection if the worker thinks the employer was negligent or reckless and chooses to file a lawsuit rather than claim workers’ compensation. 

There is no exact limit for Part A coverage. The amount that is paid to the injured worker is determined by the Workers’ Compensation Board in every state. When deciding how much the worker should get in compensation, the Board will consider the worker’s salary each week and how serious the injury is. 

For instance, if the worker in New York earns a salary each week of $500, is hurt and 100% disabled, the benefit would be ⅔ of the average weekly salary, subject to a maximum determined by the state. Workers’ compensation also pays medical bills for disease treatment and injury rehabilitation. 

For Part B coverage, there are set limits. The basic limits are $100,000 per event for bodily injury, $100,000 per employee for a disease, and $500,000 policy limit for bodily injury caused by disease. These limits are in effect for all states, except ND, OH, WA and WY. 

Because one or two large workers’ comp claims can exhaust the limits of the company’s liability, employers should buy more liability coverage. The added premium for boosting limits is quite small when compared to the protection provided. 

Every state has time limits to file a workers’ compensation claim and to report a work-related injury to your employer. If you miss the deadline, you will probably lose your chance to be compensated for your work-related injuries. 

Each state has established time limits, also called Statutes of Limitation, that can vary a great deal. But the bottom line is this: The sooner you file your workers’ compensation claim, the better. 

After you are hurt on the job, or you find out that you have a medical condition that was caused by a workplace accident or condition, you need to report it to your employer as soon as possible. Make it clear to your supervisor or the HR department that you were hurt at work. 

Some state laws say you must give this notice ‘immediately, but most states have a specific time limit between 10 and 90 days. However, in many states, it does not count against you if you fail to make a written workers’ comp report; as long as you tell your employer within the designated time limit, your claim should be eligible under workers’ compensation laws. 

After you tell your company about your illness or injury, you usually need to file a written workers’ compensation claim with the workers’ comp department in your state. Your company may do this for you, but check to make sure either way. Deadlines for filing claims with the state can vary between one and three years in most cases, but some states allow even longer. 

For example, Wisconsin state law is six years within the date of injury. But there is no time limit for very serious injuries, such as brain trauma. If your company provided medical benefits before you filed your claim, the time for filing may not begin until those benefits have stopped. 

Did you experience a traumatic event on the job? You may not think about claiming workers’ compensation for post-traumatic stress disorder (PTSD), but you should understand how the condition is defined. That way you can make sure that you get the compensation you deserve. PTSD is a serious mental health condition that can prevent you from working. It also can prevent you from living your life normally and enjoying daily activities. 

For PTSD to be paid for by your workers’ compensation, it needs to meet the criteria stated in the latest edition of the Diagnostic and Statistical Manual of Mental Disorders. Your PTSD also must be diagnosed by a psychiatrist or psychologist. 

Symptoms of PTSD need to last or begin 30 days or more after the event to be classified as PTSD. Symptoms that last less than 30 days are defined as acute stress disorder, not PTSD. This difference is key because it will change how various states handle your PTSD claim. 

If the work event was a physical event that caused PTSD, most states recognize it as a physical and/or mental injury. Treatment would be covered under workers’ compensation. If the worker was involved in a traumatic episode at work, but there was no actual injury, some states may not recognize it as PTSD. This would be classified as a mental injury and not eligible for compensation under most workers’ compensation plans. 

If you suffer an accident at work and believe you have PTSD, it is important to be diagnosed as soon as possible by your doctor. Early intervention is the best way to guarantee a full recovery. Making a claim as soon as possible after the event also assures you of the best chances to be compensated for your 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.

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.

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.

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.

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.

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