May 7th, 2018|
One day you are at work driving for the local delivery company delivering packages. It’s rush hour, so traffic is heavy. You are at a red light waiting for the light to change, and out of nowhere, another truck slams into the back of your vehicle. Your neck jerks back and forth from the impact. You are experiencing pain in your back. Your right leg hurts from slamming on the brakes to avoid hitting another vehicle. What do you do? Who do you sue? Who’s going to cover your medical bills? What if you cannot return to work?
Well, if you are injured while on the job and it is the fault of someone else who is NOT your employer or coworker, here’s what you can—and cannot—do.
Can I sue my employer?
No, you cannot sue your employer. But, because your injury occurred during the course of your employment, you can file a workers’ compensation claim so that you can get the cost of your medical treatment covered and receive monetary benefits while you are unable to work. Workers’ compensation is a no-fault system, and as long as you can show that you were injured on the job, you can make a claim. Immediately, you need to report your injury to your employer. If possible, I would report it in writing and keep a copy for your personal records. Your employer should have you complete a claim form, and they should file your claim as soon as possible. This will begin the process for your workers’ compensation claim.
But what about that person or entity who caused my injuries? Can I sue them?
This particular scenario creates a unique situation where you could collect workers’ compensation benefits AND pursue a third-party claim for damages against the person or entity that is at fault (often referred to as a third party). If a third party is responsible for your injuries, i.e. they were negligent, you have a right to bring a third-party claim against them. This unique scenario is what we at ChasenBoscolo call a “companion case.” We call it a companion case because you have two different claims that arise from a single event. Although there are two different claims, let me explain how they go hand-in-hand and how we can help.
How Workers’ Compensation Works
Because workers’ compensation is a no-fault system, you do not have to prove negligence to get workers’ compensation benefits. You basically just have to prove that you were injured in the course of your employment. The first benefit that is allotted to you is medical treatment. Workers’ Compensation will cover all medical treatment that is causally related to your work-related injury that is reasonable and necessary. Second, if you miss time from work due to your work-related injury, you may be eligible for partial wage loss reimbursement. There are four types of wage loss reimbursement benefits:
- You can receive Temporary Total Disability (TTD) benefits if you are unable to work at all as you recover from your injury over the short-term.
- You can receive Temporary Partial Disability (TPD) benefits if you are unable to return to your pre-injury employment but have found a new job that would accommodate your injury. You may receive a wage loss benefit that is equal to 2/3 the difference between what you earn at your current job that accommodates your injury versus what you earned at your old job.
- You can receive Permanent Total Disability (PTD) benefits if your injuries are so severe that they are deemed permanent after you have reached maximum medical improvement. This benefit will warrant you a lifetime wage replacement benefit.
- You can receive Permanent Partial Disability (PPD) benefits if your injuries are permanent but do not completely limit your ability to work.
Last, there’s a fifth benefit, which is vocational training. You can be retrained to work in a new field if your injury prevents you from being able to return to work in your pre-injury field. This benefit can get you back to earning a meaningful wage.
How does the third-party claim (aka a negligence claim) work?
First, we have to be able to prove negligence. This requires having evidence to show four legally required elements at court.
The first element that you have to prove is that the other person had a duty to you or to the general public to exercise reasonable care for others’ physical safety and the safety of their property at the time that you were hurt. For example, if we are driving a car on the roadway, we have a duty to other drivers and pedestrians on the roadway to follow the safety rules to prevent harm or death.
Second, you have to show that the person’s choices breached the duty they owed to you by failing to conform to the required standard of care. For instance, a driver who chooses not to pay full attention to the road and causes a motor vehicle collision does not meet the standard of care.
Third, you must be able to show that the person’s choices were the proximate cause of your injury. Proximate cause simply asks if the harm or injury that you suffered was foreseeable. For example, if a driver negligently drives his vehicle, it is foreseeable that he might cause a motor vehicle collision with another vehicle, hit a pedestrian or crash into a storefront?
Finally, you have to show that you were in fact harmed and harmed in a way that can be compensated. (However, if you are making a claim against a manufacturer for a defective product, you may only need to prove that there was a defect and that it caused your injury. This is what is called strict liability.)
Unlike a workers’ compensation claim, you can receive compensation from a third party for the following:
- All past and future medical care and treatment;
- All past and future loss of earnings;
- All time lost at work, even if paid under sick leave, vacation time or other benefits (third party does not get to benefit by the benefits you earned and may have used up);
- Loss of enjoyment of life and activities that you have missed out on;
- All past and future pain, suffering, emotional distress and inconvenience;
- Property damage if you were using your own property (ex: driving your own vehicle).
What kinds of work injuries create companion or third-party cases?
Any combination of circumstances and people can come together to cause a work-related injury. However, many work-related injuries tend to fall into the following categories:
- Someone gets into a car crash while driving for work — If you are driving as part of your job and get into a car collision that is not your fault, you may be able to sue the other driver in addition to collecting your workers’ compensation benefits.
- Slips and falls and other injuries that happen on someone else’s property — If you are working on someone else’s property and you are injured due to a dangerous condition, you may be able to sue the building owner, property manager and/or cleaning company in addition to collecting your workers’ compensation benefits.
- Injuries to subcontractors working on construction sites — If you’re injured on a construction site while working for a subcontractor, you may be able to bring a lawsuit against the general contractor in addition to collecting your workers’ compensation benefits.
- Defective products — If you are using a certain tool or device and it is defective due to faulty manufacturing, you may be able to sue the manufacturer in addition to collecting your workers’ compensation benefits.
What else should I know about companion or third-party cases?
No matter the category that your claim may fall under, it’s important to know what impact your third-party claim will have on your workers’ compensation claim and vice versa. Because ultimately that third-party is the cause of your injuries, they do not get to benefit from workers’ compensation paying for your medical treatment and partial reimbursement for lost wages. In fact, the workers’ compensation carrier (your employer’s insurance carrier) has a right to be reimbursed for benefits paid to you as a result of this negligent third-party. The workers’ compensation carrier may place a lien on your claim, which basically means they have to reimburse out of the proceeds of your third-party claim. This process whereby the insurance carrier claims a right to reimbursement from the third party, who is also responsible for the loss, is known as subrogation.
Having a workers’ compensation claim and a personal injury claim going on at the same time can be overwhelming and time-consuming. Therefore, it is very important to have an experienced attorney handle your companion case. There are many traps and pitfalls that an attorney who is not well versed would not be able to avoid. Having an experienced attorney can also be effective in making sure you recover for all your damages and help you maximize your possible recovery. An experienced and knowledgeable attorney, like those at ChasenBoscolo, can help by negotiating with your employer’s insurance carrier and the third-party’s insurance carrier to maximize your recovery and make sure you are fully compensated on both claims.