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Workplace Injury: When You Can Sue Outside of Workers' Compensation

Workers' compensation insurance may not be your only recourse for a workplace injury.

If you've been injured in the workplace, you've probably been told that the only compensation you can receive will come from your employer's workers' compensation insurance. Although this is the general rule, there are many exception situations in which you may be able to sue for damages caused by your injuries. For example:

  • If you were injured by a defective product, you might be able to bring a products liability action against the manufacturer of the product.
  • If you were injured by a toxic substance, you might be able to bring a toxic tort lawsuit against the manufacturer of that substance.
  • If you were injured because of your employer's intentional or egregious conduct, you might be able to bring a personal injury lawsuit against your employer.
  • If your employer does not carry workers' compensation insurance, you might be able to sue your employer in civil court or collect money from a state fund.
  • If a third party caused your injury, you might be able to bring a personal injury lawsuit against that person.

Although workers' compensation can provide money and benefits to an injured worker, temporary disability and permanent disability payments are usually quite low and don't compensate the worker for things like pain and suffering. Workers' compensation also does not provide punitive damages to punish an employer for poor safety controls or dangerous conditions. That's why it's important for injured workers to understand their rights to bring a case outside of the workers' compensation system.

In addition to the lawsuits described in this article, you might obtain additional money from government benefits such as Social Security disability insurance (SSDI or SSI) if your injury is disabling and prevents you from working. For more information, see Nolo's article on Social Security Disability Benefits.

If You Were Injured by a Defective Product

When a worker is injured by a machine or piece of equipment that is defective, failed to work properly, or is inherently dangerous, the manufacturer of the machine or equipment can be held responsible for the injury if it knew of the danger and/or didn't properly warn the business or employees of the danger. In such a situation, the manufacturer would have to compensate the worker for things like medical bills, lost wages, and pain and suffering.

Example:

Bill works in a factory that produces office products. His job is to operate a punch press that punches holes in boxes. One day, when Bill puts his hand into the press to adjust a box, the foot pedal that he uses to stop the press sticks, and the press crushes three of his fingers. His fingers are no longer usable after the accident. Bill can collect workers' compensation from his employer, and he also has a possible products liability case against the manufacturer of the defective press.

If you have been injured by an unsafe machine or other equipment in your workplace, consider talking to an attorney about your rights. You can also file a complaint with the Department of Labor's Occupational Health and Safety Administration if there have been unsafe conditions (for more information, see Nolo's article OSHA: Complying With Workplace Health and Safety Laws), in addition to filing a workers' compensation claim. This is a particularly important step to take if your employer is still requiring you or other employees to use the equipment.

If You Were Injured by a Toxic Substance

Sometimes the chemicals and other substances that workers use are toxic and cause severe injuries and illnesses. These substances can include such things as asbestos, benzene, chromium compounds, silica, and radium, but any substance that harms you could possibly be the subject of a lawsuit for a "toxic tort."

Generally speaking, there are two kinds of toxic injuries: acute injuries are apparent immediately, while latent injuries may take years to appear. Examples of acute injuries include chemical burns and poisonings. Examples of latent injuries include cancers and lung diseases. Because of the time delay, latent injuries tend to be more difficult to prove than acute ones, but these cases are not impossible. Workers have been successful in lawsuits brought years after their exposure to the toxic substance. (In particular, workers who suffer from asbestosis or mesothelioma almost always succeed in lawsuits because the causation between exposure to asbestos and asbestosis and mesothelioma has been proven in many lawsuits. For more information, see Nolo's article Mesothelioma and Asbestos: An Overview.) When a worker is injured by a toxic substance, the worker can usually sue the manufacturer of the toxic substance and any manufacturers of safety equipment that proved to be ineffective in the handling of the toxic substance.

If you have been injured or sickened by a toxic substance, talk to an attorney about your legal rights. Especially if a great deal of time has passed between your exposure and your injury or illness, you will need the assistance of an expert to help you sort out the complicated issues involved. And even if the toxic injury was recent, an attorney can probably get you the best settlement for your injury. To find a personal injury lawyer who handles toxic substances, see Nolo's Lawyer Directory (when you view a personal injury lawyer's profile, click the "Types of Cases" and "Work History" tabs to learn about a particular lawyer's experience, if any, with toxic torts and workplace injuries).

If the toxic substance is continuing to make the workplace unsafe for your or others, consider taking the additional step of filing a complaint with the Occupational Safety and Health Administration (OSHA).

Sometimes the actions of your employer or a third party allow you to go to court. Below are more situations when you might be able to sue in court for your workplace injuries.

If Your Employer's Conduct Is Intentional or Egregious

In many, but not all, states, if an employer hurts an employee on purpose, the employee can sue the employer for damages that exceed what the employee would receive through workers' compensation.

Example:

The owner of a company and his employee, Keith, get into a heated argument. The owner pushes Keith so hard that Keith falls and injures himself. Keith can sue the owner outside of the workers' compensation system because the owner intentionally hurt him.

While most states allow an employee to sue under these circumstances, the following states do not allow this type of lawsuit: Alabama, Georgia, Indiana, Maine, Nebraska, New Hampshire, Pennsylvania, Rhode Island, Virginia, and Wyoming. Also, the federal government does not allow its employees to sue in these circumstances.

In about a dozen states, an employee can sue outside of the workers' compensation system if the employer does something that's grossly negligent or reckless that injures the employee. The idea is that the employer's conduct is so egregious that it is tantamount to intentional harm.

Example:

John's employer requires him to work in a dirt trench that is deeper than what federal safety standards allow. In addition, the trench has standing water and unstable walls, and the employer refuses to provide proper protective equipment or to shore up the sides of the trench. John is seriously injured when the trench caves in on him. John is allowed to sue his employer outside the workers' compensation system.

In very rare circumstances, some states will allow employees to sue if a supervisor or another employee (rather than the actual employer) causes the harm. These states allow the lawsuit if the employer told the supervisor or employee what to do.

Example:

Security guards restrain and assault a group of employees who are attempting to submit formal grievances to company management. The employees are allowed to sue outside the workers' compensation system because the employer told the guards to act as they did.

If you think that your injury is the result of intentional or egregious conduct by your employer, consider talking to a personal injury or employment law attorney about your rights. For help on choosing a good personal injury attorney, read Nolo's article Finding a Personal Injury Lawyer.

If Your Employer Does Not Have Workers' Compensation Insurance

If your employer is uninsured, then you have the option of suing your employer in civil court for your injuries. Although this gives you the opportunity to get more money than the workers' compensation system provides, you will also have the burden of proving that the employer was at fault in causing your injury, something that employees don't have to do when they get money and benefits from the workers' compensation system. In addition, some states, such as California, have a fund that provides benefits to the injured workers of uninsured companies. In California, the fund is called the Uninsured Employer's Benefits Trust Fund.

To sort out your legal rights if your employer is uninsured, talk to an experienced workers' compensation attorney in your state.

If a Third Party Injures You

Sometimes when an employee is injured on the job, the fault lies not with the employer or with a dangerous substance or machine, but with another person. In such a case, the employee might be able to sue that person for damages.

Example:

Thelma drives a company car to make sales calls on her clients. While en route to a client's office, she is hit by Joe, who runs a red light. Joe is at fault in the accident and is the cause of Thelma's injuries. Thelma can bring a lawsuit against Joe for damages (and Joe's insurance company may pay out without a lawsuit).

If a third party's intentional or negligent conduct caused your injury, talk to a personal injury attorney about your rights. For help on choosing a good personal injury attorney, read Nolo's article Finding a Personal Injury Lawyer. Or you can go to Nolo's Lawyer Directory for a list of personal injury attorneys in your geographical area (click the "Types of Cases" and "Work History" tabs to learn about a particular lawyer's experience, if any, with workers' compensation and workplace injury claims).

http://www.nolo.com/legal-encyclopedia/workplace-injury-lawsuit-sue-30334.html

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