Workers Compensation

Injured at Work: Do I File a Workers' Comp Claim or a Lawsuit?

Updated by Sachi Barreiro, Attorney, University of San Francisco School of Law
In some situations, an employee may file a lawsuit in court rather than file a workers' compensation claim.

Work can be a dangerous place. According to the Bureau of Labor Statistics, more than three million work-related injuries and illnesses were reported in 2013. Certain workers are at a higher risk of injury, including truck drivers; nurses and nursing assistants; manual laborers; janitors and cleaners; general maintenance workers; and police and sheriff’s officers.

As a general rule, employees may not sue their employers in court for work-related injuries; they must go through workers’ comp to receive compensation. However, there are some limited situations where an injured worker can file a lawsuit. Find out what your options are below.

What Is Workers’ Compensation?

The workers’ compensation system is designed to strike a balance between the interests of the employee and the employer. On one hand, it makes it easier for employees to get compensated for their injuries; a worker can receive benefits relatively quickly without needing to prove that the employer did something to cause the injury. On the other hand, it protects employers by limiting the amounts that they have to pay out and saving them the time and expense of defending against a lawsuit. (For more information, read an Overview of the Workers’ Compensation Process.)

The major drawback of workers' comp for employees is that compensation is limited by law. For example, wage loss benefits are usually only two-thirds of the employee's usual earnings, and they are subject to a maximum amount established by state law. Workers' comp also does not provide compensation for pain and suffering—the emotional upset, physical discomfort, and inconvenience caused by the injuries.

In a lawsuit, pain and suffering is available, and there is no cap on lost wages. However, lawsuits can take a long time to resolve, and the worker must prove that the employer caused the injury.

When Can an Employee File a Lawsuit?

As with any rule, there are a handful of exceptions that would allow an employee to file a lawsuit in court. Some of the most common exceptions are listed below.

No Insurance

In all states except Texas, private employers are required to carry workers’ compensation insurance. In Texas, workers’ compensation coverage is optional. If your employer doesn’t carry the required workers’ comp insurance, or opts out of workers’ comp in Texas, you can usually file a lawsuit against the employer in court. However, some states, including Georgia, don’t allow workers to sue when there is no workers’ comp coverage. Instead, the worker would file a workers’ comp claim as usual, and the employer would be responsible for paying for benefits out of pocket (rather than through insurance).

Intentional Harm

If your employer intentionally hurts you, you can file a lawsuit in most states. For example, in California and New York, you can sue in court if the owner of your company pushes you out of anger and you fall and break a leg. Likewise, you can usually sue when an employer acts in a way that is certain, or substantially certain, to bring about harm. These cases go beyond ordinary negligence, such as careless mistakes or oversights. For example, suppose your employer intentionally removed a safety device from equipment so that you could work faster and knew that this was very likely to cause you harm. In this situation, you could probably sue your employer in court.

Third-Party Claims

If your injury was caused by someone other than your employer, you can file a lawsuit against that party. Unlike the situations discussed above, the lawsuit would be in addition to your workers’ comp claim. You would file a workers’ comp claim against your employer and a personal injury lawsuit against the third party. (See Common Kinds of Personal Injury Claims for more information.)

Third-party claims typically apply in the following circumstances:

  • Product defect. You were injured by a machine, product, or piece of equipment that was defective. For example, suppose you were injured by a forklift that tipped over unexpectedly. You may be able to sue the manufacturer or distributor of the forklift because it was poorly designed.
  • Car accident. If your accident happened while you were driving for work, or running a work-related errand, you may have a third-party lawsuit. For example, if the driver of the car that hit you ran a red light, you can sue the driver in court.
  • Toxic substances. A worker who is injured by a toxic substance in the workplace—like asbestos, benzene, chromium compounds, silica, and radium—may be able to bring a toxic tort lawsuit against the manufacturer of that substance.
  • Premise liability. If you were injured on the property of a third party, you may be able to sue that party. For example, if you slipped and fell while visiting a vendor's place of business, you may be able to sue if the vendor failed to maintain its property in a safe manner.

Call a Workers' Comp or Personal Injury Lawyer

Trying to pursue a claim outside of the workers’ compensation system can be difficult. If you are trying to sue your employer or a third party in court, you will likely need the help of an experienced lawyer. For more information on what type of lawyer you will need, see What’s the Difference Between a Workers’ Comp Lawyer and a Personal Injury Lawyer?

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