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When an Employee can Sue for a Workers Compensation Injury
By Randy Sieberg, CIC, ARM, CRM

Most states, through statute, limit a worker's remedy for a work related injury to a workers compensation claim against the employer. About the only exception is when the employer actually indends to cause harm to the worker otherwise the employee's sole remedy against the employer will be through the workers' compensation system. Many workers compensation statutes also prohibit legal actions against fellow employees who may cause the worker's injury. Thus, workers' compensation coverage is typically referred to as the "exclusive remedy" available to an injured worker. Many times this works to the employees favor as they will receive workers compensation benefits for medical care, lost wages and rehabilitation, even if the worker causes his own injury.

An employee may sue for an on the job injury when workers compensation statutes in their jurisdictions don't prohibit the legal action. This typically involves situations where the worker is injured because of the negligence of a "third party" - an individual, company or business which is neither the worker's employer nor their fellow employee. Workers' compensation does not block a lawsuit for injuries intentionally caused by an employer.

The "exclusive remedy" provisions of workers' compensation statutes generally apply only when the employer carries workers compensation insurance as required by state law. An employer who chooses not to obtain coverage, as required by statute, or chooses to opt out of the workers compensation system, if this is an available option in their state of operation, will not be protected by the "exclusive remedy" provision. You may also find that in a few jurisdictions, the employee may also be able to opt out of workers compensation, having the right to choose between pursuing a claim for guaranteed benefits under the workers' compensation system , or to bring suit against the employer. You will find that most states will not permit the employer or employee to opt out of the system.

Here's a few situations where an injured employee may be able to sue and still receive workers compensation benefits:

• Product Liability - When a worker is injured by using defective or dangerous equipment, or because of poor instructions, warnings or training about the operation of the equipment, and the fault for the defect is with a third party, like the manufacturer or installer of the equipment. It may be possible for the injured employee to bring legal action against that third party and still collect his workers compensation benefits from his employer.
• A Third Party on His Employer's Premises - Sometimes a third party, another company, will be working on the employers premises and commits an act that causes an injury to an employee. For example, an independent contractor may be performing repairs on the employer's building, and drop something on an employee or an independent contractor performing work on the employers premises may be operating equipment that strikes and injures one of the premise owner's employees. So, if the injury is caused directly by another person, who has no employment relationship with the injured worker's employer, it may be possible to pursue separate legal action against that person and his employer.
• Injury Occurrs On Another's Premises - When a worker performs his job duties away from his employer's premises, and suffers an injury caused by someone at the remote jobsite. When a worker is injured by the negligence of a third party while performing that work, he may be able to bring legal actiion against the negligent third party and that person's employer.
• Intentional Torts - If an employer actually intends to harm the worker, then the exclusive remedy provision of workers' compensation law will not apply. The injured employee may then bring a lawsuit against the employer. The rules around this exception are very specific. An actual intent to to cause harm is required. This does not include situations where the employer just mantains a poor work environment or does not care about his workers or even creates a hazardous work environment. Because of the very specific rules around this situation, this action is seldom used to bring legal action against the employer.
• Construction Risks - A very common third party claim situation can be found within the context of construction risks. It is not unusual for workers from multiple employers, contractors, subcontractors and independent contractors to be simultaneously working on the same construction site, and as a result to find a construction related injury to have been caused by the negligence of a third party. A third party and their employer who may be open to legal action.

I've provided above some information about the "exclusive remedy" provision found in most workers compensation statutes and shown some generic examples of when an injured employee may bring legal action and still receive workers compensation benefits. The information provided in this article is only general in nature and not to be taken as legal advice. For information about any claim situation please seek competent legal counsel in the jurisdiction that you reside.

This article is brought to you by WorkCompConsultants.com, an independent workers compensation consulting firm dedicated to helping employers prevent and resolve work comp issues.