Can I Collect Workers’ Comp and Sue My Employer for Damages?

By / March 21, 2017 / Workers Compensation / No Comments

Injured on the job and considering a work injury lawsuit? Here’s what you need to know about building a case against your employer or filing for Workers’ Comp.

Before workers’ compensation existed, an individual worker only had the protection of the civil court system. If the worker suffered an injury or developed an illness while at work, their only recourse was to sue the employer in civil court to get reimbursed for medical expenses and salary for lost income due to work conditions.

This was not the best solution to the problem because medical care is needed immediately and it can take time and money to recuperate and return to work, if ever. Civil courts were often behind schedule because of a heavy workload, which meant that the worker’s suit fell in a long line of cases from other people. Actually getting the suit to a court of law was a laborious process, which could take many months or even years before the case would be presented to a judge or a jury and the burden of proof was on the employee.  In the meantime, the worker had bills coming in for medical treatments, doctor’s visits, diagnostic services, possibly surgery, and short- or long-term rehabilitation. These bills would have to be paid out of the worker’s personal funds or health insurance, and received no pay for time out of work until a settlement was reached.

Get Paid Sooner, Rather Than Later
In an effort to improve the situation, the workers’ compensation system came into being. This system offered wide coverage for work-related injuries or illnesses that would pay medical bills and offer a monthly payment for a covered incident to help compensate for the worker’s lost salary. The salary replacement money, however, would not be on par with the worker’s previous salary.

To take advantage of such a system, workers had to give up something in return. This was being unable to sue their employer for pain and suffering, and in some cases possible loss of partnership with their spouse, mental anguish, and other physical, emotional or mental issues.

Even though the right to sue was lost, employees who suffered a work-related injury or illness gained a system where they could begin receiving money immediately and have all their medical expenses paid for if their claim was related to work. They would not have to wait for their case to wind through the civil court system.

Three Situations Where You Can Sue Your Employer
All states in the United States have workers’ compensation except Texas, where employers are allowed to sign on or forgo it.

Here are the three conditions where you can sue your boss:

  1. In states other than Texas, if an employer does not have enough workers’ compensation coverage or none at all, they may be violating the law. As a worker in such cases, if you suffer an injury or an illness that is related to your work, you would be allowed to sue your employer. You will, however, have to show that your injury was the fault of the employer.
  2. You can also sue your employer if your employer intentionally injured you, but you would have to show that such action was deliberately meant to cause you harm. An example would be if your supervisor lost their temper and physically attacked you. Most but not all states allow you to sue your employer in such a case.
  3. In several states, an employee can sue their employer if the employer’s conduct was reckless or grossly negligent. This exception is allowed because it tends to follow the above example where the conduct is so out of bounds that it amounts to being intentional.

If your employer was negligent in some way that caused an injury to you but was not reckless or grossly negligent, such a case would still fall under workers’ compensation. For instance, your employer may have stopped maintaining a conveyor belt that you worked on and which came apart and injured you.

If you do file a workers’ compensation claim that is turned down, you still cannot file a civil suit. Your recourse in such a case would be to appeal your workers’ comp claim through that system.

If you elect to file a civil suit against your employer, the courts may be backed up, and it could be a considerable length of time before a court or a jury would actually hear the case. You might also actually lose the case and end up with nothing.

If you eventually win your case in the civil court system, not only could medical bills and related expenses be paid, but you may also receive an award for future lost earnings. If the company’s conduct was especially bad, a punitive award might be given. This type of award is meant to punish the employer and could be many times the amount of the settlement covering actual medical bills and lost earnings.

Although it is possible to file such a civil case yourself, a number of complex issues are involved that you would have to deal with, and not many people undertake this course of action. The burden of proof is generally on you, so it would be best to hire an attorney who specializes in workers’ comp laws. Such a litigator could examine your particular situation and give a fair evaluation of whether or not it would be advisable to file the case.

Sometimes it is certainly in the worker’s best interest to pursue the case in court instead of using workers’ compensation, but an experienced workers’ compensation attorney would be very valuable for providing a fair analysis of your case.

Considering that your company probably has attorneys to deal with such matters, you are already in a weak position, but having an attorney on your side who knows the workers’ compensation laws thoroughly could be a significant advantage for you. Such a legal specialist should understand what evidence is needed to win the case, such as certain types of documentation and statements. You may also need maintenance records, employee records, medical documentation, and expert medical or industry witnesses which could support and speed along settlement of the case for you.

Can I Collect Workers’ Comp and Sue My Employer for Damages?
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