Workplace Injury: When You Can Sue Outside of Workers' Compensation

Workers' compensation insurance may not be your only option to compensate you for your workplace injury.

If you've been injured in the workplace, you've probably been told that the only compensation you can receive will come from your employer's workers' compensation insurance. Although this is the general rule, there are many exceptions to it, including the following:

• If you were injured by a defective product, you might be able to bring a products liability action against the manufacturer of the product.
• If you were injured by a toxic substance, you might be able to bring a toxic tort lawsuit against the manufacturer of that substance.
• If your employer injured you intentionally or the employer's egregious conduct caused your injury, you might be able to bring a personal injury lawsuit against your employer.
• If your employer does not carry workers' compensation insurance, you might be able to sue your employer in civil court or collect money from a state fund.
• If a third party caused your injury, you might be able to bring a personal injury lawsuit against that person.

Although workers' compensation can provide money and benefits to an injured worker, temporary disability and permanent disability payments are usually quite low, and don't compensate the worker for things like pain and suffering. Workers' compensation also does not provide punitive damages that punish an employer for poor safety controls or dangerous conditions. That's why it's important for injured workers to understand their rights to bring a case outside of the workers' compensation system.

In addition to the lawsuits described in this article, you might obtain additional money from government benefits such as Social Security disability insurance (SSDI or SSI) if your injury makes you disabled and prevents you from working.

If You Were Injured by a Defective Product

When a worker is injured by a machine or piece of equipment that is defective, failed to work properly, or is inherently dangerous, the manufacturer of the machine or equipment can be held responsible for the injury if the manufacturer knew of the danger and/or didn't properly warn the business or employees of the danger. In such a situation, the manufacturer would have to compensate the worker for things like medical bills, lost wages, and pain and suffering.

If you have been injured by an unsafe machine or other device in your workplace, consider talking to an attorney about your rights. You can also file a complaint with the Department of Labor's Occupational Health and Safety Administration if there have been unsafe conditions , in addition to filing a workers' compensation claim. This is a particularly important step to take if your employer is still requiring you or other employees to use the device.

If You Were Injured by a Toxic Substance

Sometimes the chemicals and other substances that workers use are toxic and cause severe injuries and illnesses. These substances can include such things as asbestos, benzene, chromium compounds, silica, and radium – but any substance that harms you could possibly be the subject of a lawsuit for a "toxic tort."

Generally speaking, there are two kinds of toxic injuries – ones that are acute in that they are apparent immediately, and ones that are latent in that they take years to appear. Examples of acute injuries include chemical burns and poisonings. Examples of latent injuries include cancers and lung diseases. Because of the time delay, latent injuries tend to be more difficult to prove than acute ones, but these cases are not impossible, and workers have been successful in lawsuits years after their exposure to the toxic substance. (In particular, workers who suffer from abestsosis, or mesothelioma, almost always succeed in lawsuits because the causation between exposure to asbestos and abestsosis and mesothelioma has been proven in many lawsuits. For more information, see Nolo's article Mesothelimona and Asbestos: An Overview.) When a worker is injured by a toxic substance, the worker can usually sue the manufacturer of the toxic substance and any manufacturers of safety equipment that proved to be ineffective in the handling of the toxic substance.

If you have been injured or sickened by a toxic substance, talk to an attorney about your legal rights. Especially if a great deal of time has passed between your exposure and your injury or illness, you will need the assistance of an expert to help you sort out the complicated issues involved. And even if the toxic injury was recent, an attorney can probably get you the best settlement for your injury. To find a personal injury lawyer who handles toxic substances, see Nolo's Lawyer Directory (when you view a personal injury lawyer's profile, click on the "Types of Cases" and "Work History" tabs to learn about a particular lawyer's experience, if any, with toxic torts and workplace injuries).

If the toxic substance is continuing to make the workplace unsafe for your or others, consider taking the additional step of filing a complaint with the Occupational Safety and Health Administration (OSHA).

If Your Employer's Conduct Is Intentional or Egregious

In many, but not all, states, if an employer hurts an employee on purpose, the employee can sue the employer for damages that exceed what the employee would receive through workers' compensation.

While most states allow an employee to sue under these circumstances, the following states do not allow this type of lawsuit: Alabama, Georgia, Indiana, Maine, Nebraska, New Hampshire, Pennsylvania, Rhode Island, Virginia, and Wyoming. (All other states allow this type of lawsuit.) Also, the federal government does not allow its employees to sue in these circumstances.

In about a dozen states, an employee can sue outside of the workers' compensation system if the employer does something that's grossly negligent or reckless that injures the employee. The idea is that the employer's conduct is so egregious, and so reckless, that it is tantamount to intentional harm.

In very rare circumstances, some states will allow employees to sue if a supervisor or another employee, and not the actual employer, causes the harm. These states allow the lawsuit if the employer told the supervisor or employee what to do.

If you think that your injury is the result of intentional or egregious conduct by your employer, consider talking to a personal injury or employment law attorney about your rights.

If Your Employer Does Not Have Workers' Compensation Insurance

If your employer is uninsured, then you have the option of suing your employer in civil court for your injuries. Although this has the benefit of giving you the opportunity for getting more money than in the workers' compensation system, you will also have the burden of proving that the employer was at fault in your injury, something that employees don't have to do when they get money and benefits from the workers' compensation system. In addition, some states, such as California, have a fund that provides benefits to the injured workers of uninsured companies. In California, the fund is called the Uninsured Employer's Benefits Trust Fund.

To sort out your legal rights in the situation where your employer was uninsured, talk to an experienced workers' compensation attorney in your state.

If a Third Party Injures You

Sometimes when an employee is injured on the job, the fault lies not with the employer or with a dangerous substance or machine, but with another person. In such a case, the employee might be able to sue that person for damages.

If a third party's intentional or negligent conduct caused your injury, talk to a personal injury attorney about your rights. To find a lawyer, you can go to Nolo's Lawyer Directory for a list of personal injury attorneys in your geographical area (click on the "Types of Cases" and "Work History" tabs to learn about a particular lawyer's experience, if any, with workers' compensation and workplace injury claims).