Worker’s Compensation or Tort Claim? Why Not Both?

An employee involved in an accident while working may have a worker's compensation claim. But what if the accident is caused by a third party? Is there a claim against him? And if so, can the injured worker also file a worker's compensation claim?

First, the basics. Before the laws establishing worker's compensation claims were enacted over 100 years ago, an injured worker had to prove that his employer was negligent before the worker could obtain any recovery for his injuries. This was often difficult or impossible to do. Workers did not always have access to attorneys to help them prove their claims, employers had the resources to defend the claims, and in many instances the employer was not negligent. Perhaps the worker was negligent and caused his or her own injuries. Claims back then would drag on for years, with the worker receiving no benefits while the claim was pending, and often nothing at the end.

Worker's compensation laws changed all of that. Now, an employee only has to prove he or she was injured while working. It no longer matters who was at fault, even the employee. But, employees had to give up something for this coverage. They can no longer sue employers for injuries caused while working, but are limited to the benefits provided by worker's compensation laws. And that means there is no payment for pain and suffering, often a large part of any injury claim.

But, when a worker's injuries are caused by a third party, such as another driver in an automobile accident, there are potentially two claims available—a worker's compensation claim and a third-party tort claim. Typically, in these instances, we pursue all available benefits under the worker's compensation claim first, and then turn our attention to the third-party claim. By first pursuing the worker's compensation claim, the injured worker is able to receive immediate medical attention and payment of his or her wages while out of work. And additional compensation may be available for any permanent disability resulting from the injuries.

Once the worker's compensation claim is concluded, we focus on the third-party claim. We submit all of the necessary information about the injured worker's injuries to the insurer for the responsible party and try to reach a settlement. If we cannot, we may need to file suit in court to obtain fair and just compensation.

Once we obtain a recovery in the third-party claim, we are required to repay the worker's compensation insurer the amounts it paid to the injured worker for medical and disability benefits. This is to prevent the worker from receiving a double recovery for the same injury. But even with that repayment, pursuing both claims usually results in a larger financial payout to the injured party than pursuing only one of the claims.

Of course, each claim is unique. The strategy discussed above may not apply to all claims, so you need to consult with an experienced attorney if you are injured in an accident. We regularly represent injured parties who have both a worker's compensation claim and a third-party claim, so if you were injured on the job, please contact us to discuss your options.

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