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Workers compensation provides a great deal of financial protection to many injured workers, but it’s not all-encompassing. Sometimes, there are accidents that cause great damage but are not included under workers compensation.

Take, for example, an employee who is injured on their job by a negligent third party. If the employee suffers a serious injury, this may necessitate medical treatment and time off from work. The employee might also endure a great deal of pain and suffering. Can the employee file a personal injury suit against the negligent driver instead of — or in addition to — collecting workers compensation benefits?

Exclusive Liability and Remedy Doctrine 

In a claim for workers compensation, the employee need not prove negligence to collect benefits. However, those benefits are generally limited to medical expenses, lost wages and when relevant, an award for a permanent disability.

In exchange for workers compensation benefits, the injured party cannot file a lawsuit against the employer and, in most cases, against coworkers. This is known as the “exclusive liability and remedy doctrine.” Even if an employer’s negligence led to the injury, the employee is limited to workers compensation benefits — he/she cannot file a personal injury lawsuit against the employer.

However, this doctrine only applies to a lawsuit against the employer or coworkers.

Filing a Lawsuit against a Third Party: Time Limits and Assignments

If a third party is negligent and caused the injuries, federal legislation states that employees are not required to choose between workers compensation benefits or a personal injury suit. They are permitted to do both.

However, there are time limits as to when a lawsuit must be filed. To be actionable, a lawsuit must be generally filed within three years from the date of the negligent act. Where a workers compensation award is involved, the dates become a little confusing.

• For the first six months after a workers compensation award is given, the employee has the exclusive right to file a personal injury suit.
• After the six month period has expired, the claim, referred to as a “subrogation claim,” is assigned to the employer, who then has a right to file a lawsuit against the negligent party.
• If the employer does not file a suit within 90 days of the assignment, the right to sue reverts back to the employee.
• If the employee files the lawsuit and recovers compensation, he or she may have to pay back the employer the amount of workers compensation benefits received. Case costs, including attorney fees, are split between the employer and employee.

Filing a Lawsuit Against a Negligent Third Party

Because workers compensation generally only compensates for a portion of lost wages and for medical benefits, the amount received by the injured party is limited. A personal injury suit allows for a wider range of damages. Often, the damages for pain and suffering, and permanent disability when applicable, are far larger than medical expenses incurred.

Those injured on the job due to the carelessness of a third party should contact workers compensation attorneys NY relies on as soon as possible after the injury occurs. In complex cases, it’s imperative to find legal counsel that is fully familiar with the dates involved and will make sure the case is handled professionally, seeking the maximum recovery allowed under the law.

Thanks to our friends and contributors from Polsky, Shouldice and Rosen, P.C. for their insight into workers compensation practice.