Suing Despite Workers’ Compensation

In many states, individuals that are covered by workers’ compensation cannot sue their employer if their employer maintains a workers’ compensation policy.  The reasoning behind this rule is that if injured workers can get benefits from their employer’s workers’ compensation carrier, employers should be protected from claims that may arise from workplace accidents and injuries.  However, the benefits that workers can obtain from workers’ compensation are usually not as much as can be recovered in litigation.  As a result, it oftentimes makes sense to pursue litigation if possible, even if a claim is covered by a workers’ compensation policy.  In such situations, suing despite workers’ compensation is possible if certain conditions are satisfied.

Liable Third Parties

Suing despite workers’ compensation is usually possible against third parties that are not the employer for which the injured worker was employed.  The workers’ compensation bar usually only protects the company for which the employee is working, although there are some exceptions to this rule, and certain joint-employers may receive protection.  However, liable third parties are often not protected by the rule that workers compensation coverage bars litigation.

There are often a number of potentially-liable parties for each claim that arises on the job.  For instance, although a worker at a jobsite cannot sue their employer for injuries they may suffer, a worker may have a claim against the owner of the jobsite location, other companies operating at the site, and other entities.  Sometimes, it takes some investigation to discover which parties may be liable for a workplace injury, but a skilled attorney should be able to determine which parties can still be liable despite the workers’ compensation bar.

Grave Injury

Suing despite workers’ compensation is also possible in many jurisdictions if the employee suffers a “grave injury,” and if this is suffered, a lawsuit against an employer can be filed.  Jurisdictions vary on what constitutes a grave injury, and the threshold for such an injury is oftentimes more stringent than the serious injury threshold that must be met before a lawsuit can be filed over a car accident.  Generally, death, loss of limb, and other life-altering injuries count as a grave injury.  However, there are often many nuances associated with determining if a worker has suffered a grave injury, so workers should speak with an experienced lawyer to see if they meet the standard.

The difference in cases involving a grave injury and more minor injuries is that an injured worker may be able to sue their employer if a grave injury is suffered.  This essentially allows a worker to collect workers’ compensation benefits and still have the option of litigating against an employer.  Many employers file motions to dismiss in cases involving serious injuries, arguing that the injury is not catastrophic enough to allow a worker to sue their employer.  As a result, it is important in such situations to hire an experienced attorney who can give a client the best possibility at successfully opposing any such motion to dismiss a lawsuit.

Indemnification

Indemnification agreements may also give injured workers an indirect way of suing despite workers’ compensation.  As previously discussed, although injured workers often cannot sue their employers if the claim is covered by workers’ compensation, they can sue third parties who may be liable for the injury.  Those third parties may have indemnification agreements in place with an injured worker’s employer.  An indemnification agreement essentially means that one party has to cover losses that the other parties suffers because of a situation.  In the case of litigation, this may mean that the other party needs to help pay for a settlement or judgment that may be entered against the other party.  Even though the employer may not be sued directly by the injured worker, they can still be brought into the case by another defendant, and once in the case, they are another “pocket” for settlement purposes.  As a result, indemnification agreements can help ensure that the most money possible is recovered by an injured worker.

Workers’ Compensation Liens

One important thing to keep in mind about suing despite workers’ compensation is the possibility of workers’ compensation liens.  Many states have laws that require workers’ compensation benefits to be paid back if a recovery is obtained against third parties who are liable for the injuries at the center of a workers’ compensation claim.  The reasoning behind this rule is that injured workers should not be able to “double dip” for their recovery, and if an injured worker is made whole by a recovery against third parties, they should pay back benefits that they received.  Workers’ compensation liens can sometimes be negotiated, and it rarely makes sense to forgo litigation on an otherwise meritorious claim because of the possibility of workers’ compensation liens.  However, it is important to notify worker’s compensation authorities of an action against third parties that are liable for the injuries at the center of the worker’s compensation claim and make every effort to reduce the amount of these liens so the greatest recovery can be obtained for a client.

The Rothman Law Firm is experienced representing defendants who may have a worker’s compensation defense, and injured workers who may sue despite the availability of workers’ compensation.  If you are considering suing despite worker’s compensation or wish to otherwise speak with an experienced New York and New Jersey personal injury lawyer, please feel free to contact The Rothman Law Firm to request a free consultation.