Should You File a Lawsuit or Collect Workers’ Compensation?

ICollect Workers’ Compensationf you have been injured while on the job, you are most likely facing a tough decision. You have been hurt, and you will need to be compensated for your injuries, lost wages and medical bills, there is no question about that. But how will you go about obtaining the compensation you deserve? Would it be better for you to file a lawsuit against your employer, or a third party, or to file a workers’ compensation claim? It isn’t a decision to be made without careful consideration of the options available to you, and how best to proceed largely depends on the particular circumstances surrounding how you came by your work-related injury.

Workers’ Compensation

Workers’ compensation is a form of insurance provided through a worker’s employer, that provides a worker who becomes injured while on the job or develops a work-related illness with wage replacement as well as medical benefits. Workers’ compensation is usually paid regardless of whether the injury was the fault of the employer or the worker’s own fault. As a general rule, the worker accepts his or her workers’ compensation in exchange for the worker forfeiting his or her right to sue their employer for negligence.

Since workers’ compensation is an insurance policy held by the employer, the terms of what is provided for under the workers’ compensation can vary greatly from one employer to another. In most situations, workers’ compensation usually covers the worker’s lost wages and medical bills. However, not all medical care, and sometimes no medical care at all, is covered under an employer’s workers’ compensation coverage.

It is supremely important that you and an experienced workers’ compensation attorney review your employer’s workers’ compensation insurance coverage before deciding whether to file a workers’ compensation for you injury. There would be nothing worse that forfeiting your right to sue your employer for negligence by accepting the workers’ compensation benefits, and then not being able to get any of the wages or medical expenses paid for that you need.

When To Consider Filing a Lawsuit

Simply because you accept workers’ compensation benefits from your employer’s insurance does not strictly limit your ability to sue your employer. In very, very limited circumstances, an employee can collect workers’ compensation and still sue his or her employer if the worker can demonstrate that there was a virtual certainty that someone was going to be hurt by a condition in the workplace. There is a high burden of proof in these types of cases. If you think that you may be able to prove that your employer was responsible for your injury because your employer knew about a dangerous condition and chose to ignore it and took no action to correct the dangerous condition, you should discuss these details with an experienced workers’ compensation lawyer to determine if pursuing a lawsuit against your employer would be a good legal strategy in your case.

Additionally, you may choose to file a lawsuit if the circumstances surrounding how you obtained your injury favor the filing of a personal injury lawsuit, products liability lawsuit, or a toxic torts lawsuit in order to obtain the compensation that you deserve, in addition to receiving the workers’ compensation that you are collecting.

Lawsuit Based on Employer’s Torts

If your injury was the result of another’s malicious actions, whether the malicious actor that hurt you was your employer, or a co-worker, you may have a strong personal injury case that will do well in a lawsuit. There are a number of torts that would be eligible for a personal injury lawsuit, including but not limited to assault (i.e., an attempted battery, or a threat to commit a battery against you), battery (i.e., an injury to your person), intentional infliction of emotional distress (i.e., your employer made you do something, or caused you to observe something awful that caused you emotional trauma) and false imprisonment (i.e., your employer confined you, against your will).  When you are the victim of an intentional tort, you may have a cause of action for a personal injury claim.

Third Party Caused The Worker’s Injury

Similarly, if you sustained an injury while on the job due to the negligence of a third party, you may have a personal injury claim against that third party. A lawsuit against a third party can sometimes be done in addition to receiving workers’ compensation, but again whether or not this is possible will depend on the specifics of your situation.

Some examples of injuries caused by third parties and their respective causes of action for a lawsuit can include injuries due to defective equipment or products used while on the job are not necessarily your employer’s fault, but rather can be traced back to the negligence of the equipment or product manufacturer and could be grounds for a products liability action. If your injury is due to your handling of a toxic substance while at work, you may have a toxic tort claim against the manufacturer of the toxic substance. Similarly, if a worksite inspector or the worksite property owner is aware of a dangerous condition, but does not require correction of or take steps to correct the dangerous condition, these third parties could be liable to you for your injury. If you have chosen to receive workers’ compensation, you may be required to pay a portion of your recovery from you lawsuit against the third party back to your employer.