Can you get workers’ compensation and file a lawsuit?
Like most questions about the law, the answer depends… In most cases, you cannot sue your employer if they have workers’ compensation insurance – one purpose of the workers’ compensation laws is to protect employers from lawsuits by their employees…
You can both 1) file a workers’ compensation claim, and 2) file a lawsuit, however, if you are suing a third party – someone other than your employer – for their role in causing your injuries. If you get workers’ compensation and file a lawsuit against a third party, can you keep the money from both claims?
What are the benefits of filing both a lawsuit and a workers’ compensation claim?
If you have been injured on the job because of a third party’s negligence, you may be able to both get workers’ compensation and file a lawsuit. Call or email the personal injury and workers’ compensation lawyers at Axelrod and Associates now to set up a free consultation about your case.
Can I Get Workers’ Compensation and File a Lawsuit?
If you are injured on the job, your employer may be required to compensate you through their workers’ compensation insurance. If your employer carries the insurance, you cannot sue them for negligence related to your injuries, even if it was their fault. The upside is that it does not matter whose fault it was – even if the accident was your fault, they must pay, and you are covered.
If you are injured on the job and it was caused by someone other than your employer – a vendor, tenant, independent contractor, distributor, or manufacturer, for example – you may be able to get workers’ compensation and file a lawsuit against the third party whose negligence caused the accident.
Can I Get Worker’s Compensation and File a Lawsuit Against My Employer?
Ordinarily, you cannot sue your employer for an on-the-job injury if they carry workers’ compensation insurance.
SC Code Section 42-1-540 says:
The rights and remedies granted by this title to an employee when he and his employer have accepted the provisions of this title, respectively, to pay and accept compensation on account of personal injury or death by accident, shall exclude all other rights and remedies of such employee, his personal representative, parents, dependents or next of kin as against his employer, at common law or otherwise, on account of such injury, loss of service or death.
It’s a trade-off.
You are automatically covered and taken care of if you are hurt on the job. In exchange, your employer is protected from any lawsuits filed by injured employees. But what if the accident was caused by a defective machine, a careless vendor, or a delivery driver who drops a load of boxes on your head?
Can I Get Worker’s Compensation and File a Lawsuit Against a Third Party?
You can get workers’ compensation and file a lawsuit against someone other than your employer.
For example, if you are a delivery driver involved in an auto accident while you are on the clock, you might both 1) be covered by workers’ compensation, and 2) have a lawsuit against the at-fault driver who caused the accident.
Earlier this month, a Georgetown County employee filed suit against First Vehicle Services, Inc. after a “high-pressure vacuum truck hose exploded on him, causing permanent injuries.”
[The employee] filed a lawsuit against First Vehicle Services, Inc. after the hose exploded on him in January, causing injuries to his face and other body parts, leaving him “incapacitated permanently,” according to a federal lawsuit recently filed in the Charleston division.
First Vehicle Services, the lawsuit states, was negligent and created a dangerous and defective condition. The company failed to maintain, repair or replace the hose, according to the suit.
The company that he sued had a contract with the County for “the maintenance, repair and upkeep of vehicles owned by the county.”
Although the injuries happened while on the job, and the employee most likely was entitled to workers’ compensation benefits, he also was able to file suit against a third-party – the maintenance company – for their alleged negligence in failing to properly maintain the equipment.
If I Get Workers’ Compensation and File a Lawsuit Can I Keep the Money from Both?
You cannot get a “double recovery.”
That means, if you are paid workers’ compensation benefits and you recover damages in your lawsuit against a third party, you may have to reimburse workers’ compensation for some or all benefits that they paid out.
On the other hand, there may be benefits to filing both claims. Workers’ compensation does not cover damages for pain and suffering, property damage, or punitive damages. The amount of damages that you can recover in a civil case may be larger than the amount of benefits that you will be paid from workers’ compensation.
On the other hand, you have nothing to lose by filing a civil case. If you lose your civil case, it does not affect your workers’ compensation benefits that you receive from your employer.
Your SC workers’ compensation lawyer on the Axelrod team will help you get maximum compensation whenever possible, including by filing suit against any third parties who negligently caused your injuries.