If you have been injured in the workplace, what are your remedies for money damages? In general it depends on who injured you.
If you were injured by your employer, normally your right to recover compensation is limited to the filing of a worker’s compensation claim with the Department of Labor and Industries, or as a workers compensation claim against a self-insured employer. I say “normally” because there are rare instances in which you may be able to file a tort claim against the employer.
An example of a tort claim that can be filed directly against the employer would be if your claim was based on sexual harassment by the employer. In all instances in which we refer to the employer we are usually talking about an agent or employee of the employer. Employers are liable for the acts of agents of employees that are committed within the scope of their agency or employment.
The difference between a workers compensation claim and a tort claim are potentially significant. Monetary compensation for a workers compensation claim is limited to a schedule of what is payable depending on the injury and its impact on the injury victim.
The schedule of what can be paid is arbitrary and often very limited. For instance, you cannot recover for pain and suffering. You are generally limited to economic damages, such as medical treatment and lost wages.
Tort claims are much different. If you have a tort claim, you can recover for both economic and non-economic damages. Noneconomic damages include pain, suffering and loss of enjoyment of life.
In short if your employer injuries you, you can only recover economic damages in accordance with an arbitrary schedule. If you are injured by an employer’s wrongful conduct you are compensated by the workers compensation system although the same wrongful conduct would be compensated by the tort system if committed by a third party.
This brings us to another important distinction. You can have both a workers compensation claim and a tort claim if you are injured on the job. This occurs if you are injured on the job by a third party who is not an agent or employee of your employer.
For instance, if you are making deliveries for your employer in a motor vehicle and you are injured by the fault of another driver who is unrelated to your employer, you have a tort claim against that driver and a workers compensation claim against your employer.
Another example of when you have both a workers compensation claim and a tort claim is if you are injured as the employee of a subcontractor through the fault of the general contractor. General contractors have a duty to maintain a safe work place.
If you are hurt because the work place is unsafe in some respect, you have a tort claim against the general contractor and a workers compensation claim against the state fund or a self-insured employer.
When you have both a workers compensation claim and a tort claim against a third party, normally workers compensation benefits are paid immediately. When you later settle the tort claim or obtain a verdict in the civil justice system, the workers compensation system is usually entitled to be repaid.
However, the repayment may not be for the full amount that the workers compensation has paid. If there isn’t enough money to go around from the recovery of the tort claim, there is a statutory formula that governs the payment of your attorneys fees and litigation expenses, that guarantees the injured worker some amount in the injured workers pocket.
The injured workers medical treatment will have usually been paid by the workers compensation system, so the injured worker would not normally have to pay any of that out of the recovery on the tort claim. If there isn’t enough money to go around, usually the workers compensation system takes a smaller amount than it would otherwise be entitled to take as repayment.
For that reason where there is both a tort claim and a workers compensation claim, the approval of the workers compensation system is statutorily required in order to settle a tort claim.
Sellers Law Office handles tort claims. If you also have a workers compensation claim, Sellers Law Office will either associate another lawyer who does workers compensation cases, or refer you to that lawyer for representation on your workers compensation claim.
Feel free to call for an appointment or a phone conference at no charge.