What if someone besides my employer causes my work injury? I noted in a previous post that I would answer this question. We’ve already discussed the restriction against suing your own employer for your work related injury. But sometimes a work injury is caused by someone, or something, not associated with your employer. In this situation you may have what we refer to as a “third-party” claim. That is, a claim against a third-party other than your employer.
There are may common situations where a third-party may be responsible for your work injury. You may have been injured while using equipment which was faulty. If that equipment was manufactured, installed, owned or maintained by a company other than your employer, you may have a claim for your injury. You may have been injured on a construction site due to the actions of an employee from a different contractor, or by the actions of the General Contractor on the site. You may have been driving as part of your job and been involved in an auto accident. All of these situations may result in a potential third-party claim.
If you have a potential third-party claim it is worked up the same way any other injury claim or lawsuit is developed. The responsible party or entity must be identified. There must be duty owed to you by that defendant. There must be evidence the defendant breached or violated that duty, proximately causing your injuries. These are the basic elements of a negligence claim. While fault or negligence is not a factor to be considered in your underlying workers compensation claim, it is at the very heart of a third-party claim. Without factual evidence of negligence there can be no recovery.
If you have a potential third-party claim you must still file your workers compensation or L&I claim. You are still entitled to benefits under that claim. You do not have to choose between workers compensation benefits and damages from a third-party claim. You can still collect all of the benefits you would expect to receive because of your work injury through your L&I claim. These benefits are important because they will be paid quickly, and will assist you in the weeks and months immediately following your work injury. At the same time, you may also file a lawsuit and seek damages for your injuries from the third-party defendant.
At first blush this may sound like a windfall because the injured worker is obtaining payments from two sources for the same injury. Of course, there is a provision built into the workers compensation statute which prevents any double recovery. The Department or the self-insured employer has a lien, or right to recover, what it has paid on your workers compensation claim out of the damages you may collect on your third-party claim. This keeps the worker from getting a double recovery.
What good is it to get damages from the third-party if you just have to pay back the L&I benefits you received in your workers compensation claim? Remember the benefits you can get under your workers compensation claim are spelled out and limited by the language in the statute. A regular personal injury type lawsuit, like a third-party claim, does not have these limits. In a third-party claim you can recover your full wage loss, including future loss of earning potential. You can recover general damages like pain and suffering, inconvenience, changes in lifestyle. Your spouse may have a loss of consortum claim for the loss of love and companionship flowing from your injury. All of these elements of your damages are not recoverable in your workers compensation claim. The recovery from a third-party claim can quickly exceed what has to be reimbursed or paid back to the Department on your L&I claim, particularly if your injury is serious and keeps you away from work for an extended period of time.
How can you tell if you have a potential third-party claim? Sometimes the Department will send a letter letting you know you may have a potential third-party claim based on information about how you were injured. Whether you get this letter or not, if you think someone other than your employer may have caused or contributed to your injury, you should talk with an attorney. We can ask the who, what, when, where, why, and how questions about your work injury and assist in determining if there is a potential third-party at fault. If there is, we can assist in investigating and documenting that claim, and filing a lawsuit if necessary. It helps to hire an attorney that is familiar with both workers compensation and regular personal injury claims. One office can handle all the questions or issues which may come up in both claims. If an attorney represents you in a recovery from a third-party, the Department or self-insured employer’s lien will be reduced by a proportionate share of your attorneys fees and costs.
Not all work injuries will be the fault of a third-party other than your employer or a coworker. But, where you suspect something or someone other than your immediate employer may be responsible for your work injury you should talk with an attorney to make sure your rights are protected.