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Workers' Comp Lawsuits: Suing Your Employer and Others

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If you have been injured or sickened as a result of your employment, your legal options may extend beyond workers' compensation. Though workers' compensation benefits are usually limited to medical expenses, disability (usually two-thirds of salary), rehabilitation costs and death benefits, civil lawsuits (e.g., personal injury) permit plaintiffs to seek additional compensation for pain and suffering, punitive damages, wages, and loss of enjoyment of life.

If you or a loved one was injured or sickened in the scope of employment, don't assume a workers' compensation claim is the only legal recourse. In certain circumstances, an employee (or his or her survivor) can sue the employer and/or a third party for personal injury or wrongful death damages. Speak to an attorney to make sure you pursue the full benefits available under the law.

Dual Capacity Doctrine

Under the dual capacity doctrine, an employer who has more than one relationship to an employee can be liable to an employee under any of those relationships. For example, if an employee is harmed while operating faulty equipment that was manufactured by his or her employer, the employee can sue the employer for negligence in product liability law (as the manufacturer of the faulty equipment) or pursue workers' compensation benefits. To find out if the dual capacity doctrine is applicable to your case, speak to an attorney.

Suing Your Employer

While workers' compensation is sometimes the exclusive legal remedy against an employer for on-the-job illness or injury, in certain cases an employer's bad acts (e.g., retaliatory discharge) can be grounds for a lawsuit.

Employer Retaliation. It is illegal for an employer to retaliate against an employee for filing a workers' compensation claim — or against the employee's co-workers for participating (e.g., testifying) in the case. Many states have enacted special laws to protect workers from employer retaliation and/or allow them to file lawsuits for retaliatory discharge. Examples of retaliation include:

  • Wrongful termination of employment
  • "Bad Faith"/obstruction of the workers' compensation claim process
  • Ridicule, isolation, threats or intimidation in the workplace
  • Poor performance reviews and unwarranted disciplinary action
  • Demotion, failure to promote, negative reassignment or transfer
  • Refusal to rehire
  • Pay cuts and reduction or loss of certain benefits (e.g., insurance, vacation)

If you think you may be a victim of employer retaliation, speak to an attorney about filing a lawsuit against the employer for compensation for mental anguish, lost wages and other damages.

Willful or Serious Misconduct. If an employer's (or co-worker's) negligence (such as failing to repair a broken ladder) caused an employee's injury or illness, an employee's legal recourse is probably limited to a workers' compensation claim. However, if the employer engaged in willful or serious misconduct that caused an employee to become ill or injured, the employee may be eligible for an "enhanced" workers' compensation award and/or be allowed to file a personal injury lawsuit outside of workers' compensation. Examples of willful misconduct include:

  • Knowingly exposing a worker to a toxic hazardous condition
  • Intentional assault by a manager/boss


Most states require employers to carry workers' compensation insurance with a very small list of exceptions (e.g., very small businesses). Additionally, most states exempt a narrow group of employees which usually includes:

  • Partners
  • Sole Proprietors
  • Corporate Officers
  • Volunteers
  • Domestic Servants
  • Farmer Laborers
  • Certain Real Estate Agents

A worker who is injured or sickened on the job is free to pursue a personal injury lawsuit if an employer is underinsured or does not carry workers' compensation insurance, or if the worker is otherwise not covered.

States take different approaches to employer misconduct so it is best to consult an attorney to learn more about your options.

There are other exceptions that leave employers exposed to civil liability (see sidebar). A workers' compensation lawyer can analyze your case and determine your legal options.

Third Party Litigation

If a third party's negligent or wrongful actions contributed to a workplace illness or injury you may be able to file a civil lawsuit against the responsible party for personal injury and wrongful death damages. Third party lawsuits often arise from incidents that occur away from the office (e.g., construction sites) involving people, places and equipment not directly under the control of the employer. Common examples of this include:

  • Negligent driver in a car accident.
  • Manufacturer, distributor or seller of faulty equipment.
  • Manufacturer, distributor or seller of a defective product.
  • Subcontractor whose action caused an injury or accident.
  • Landlord or property owner because of a dangerous condition that caused an injury or illness.

You can pursue a workers' compensation claim at the same time as a third party action. If the third party suit is successful, the employer may be entitled to reimbursement for benefits paid in the workers' compensation claim. Speak to a workers' compensation attorney to learn more.

Workers' Compensation Lawyer

Workers' compensation is not the exclusive remedy for damages suffered as a result of an on-the-job injury. If you or someone you love has been hurt at work, contact an attorney to evaluate your case and pursue all remedies under the law.

Did You Know?

If a third party defendant is underinsured (e.g., a motorist) a workers' compensation claim may yield a greater award than a personal injury lawsuit.