A workers comp lawsuit is rarely a suit against your boss. In most states, comp is the only claim you have against your employer. But a third party who caused the injury can be sued for the full loss.
Who counts as a third party
A third party is anyone other than your employer and your coworkers. The question is who did something wrong.
- The driver who hit your work truck or van.
- The company that built a saw, lift or ladder with a defect.
- A general contractor or other crew that left a site unsafe.
- The owner of a store or building with a hazard you were sent into.
Save what you can. Photos, the broken part and the names of everyone there all help a third party case.
Can you sue your employer?
Almost never, if the employer carries workers comp. The trade is that comp pays no matter who was at fault.
Texas is the big exception, because employers there can choose not to carry comp. If a Texas employer without comp is sued, it cannot blame your own carelessness or the risk you took on. It also cannot blame a coworker.
How the workers comp lawsuit payback works
You can bring the suit and keep your comp claim. Texas law says a worker may sue a liable third party and also claim comp benefits.
The catch is the payback. The comp insurer gets back what it paid from your award. In Texas, the insurer's share is limited to the benefits it paid or took on. In New York, the employer or insurer has a lien for the comp and medical already paid.
So the full value of the suit is not all yours. Your attorney figures the payback into any offer before you take it.
Settling without losing your checks
Settling the suit the wrong way can end your comp checks. New York law requires the comp insurer's consent or a court order before you settle and keep your benefits.
One worker there lost her future benefits because she settled without that consent. Do not sign a release in the suit until the comp side has been handled.
If the comp insurer has also made you an offer, read about comp settlement offers.
Deadlines for the lawsuit
The suit runs on a different clock than your comp claim. In Texas, a personal injury suit must be filed within two years of the injury.
Other states set other limits. Count from the day you were hurt, not from the day your comp claim ends. For the comp side, see how to file a workers comp claim.
What the suit can pay that comp cannot
Comp pays part of your wages and your medical care. It pays nothing for pain.
A suit against a third party can ask for your full lost pay, future losses and pain and suffering. That is why it is worth checking every injury for an outside party. Read more about when a work injury is more than a comp case.
People also ask
Is a workers compensation lawsuit the same as a comp claim?
No. A comp claim goes to your state board and pays set benefits. A lawsuit goes to court against someone who caused the injury.
Do I need a workplace negligence lawyer?
If someone outside your company caused the injury, yes. They handle the negligence suit while the comp claim goes on.
How are work injury lawsuit settlements split?
The comp insurer is usually paid back first for what it spent. Attorney costs come out too and the rest goes to you.
Can I sue a coworker?
Usually not. Most states treat a coworker like the employer for a comp injury.