When someone is injured on the job, or “during the course and scope of his employment,” the accident falls under Workers’ Compensation laws. One does not file a lawsuit against his employer, but rather, he merely makes a workers’ compensation claim.

The general rule is that you cannot “sue” your employer. In other words, when you are injured during the job, you file a claim, not a lawsuit. You are entitled to certain benefits, such as lost wages, medical treatment and temporary disability.  When you are done with treatment and are ready to return to the workforce, or if you are not able to because of the injury, you receive an “award.”
But what happens if you are injured during your work by an outside, third party?  In this case, the law DOES permit you to have two claims.  That is, a workers’ comp claim, AND a third party claim against the party who caused the accident/injuries.  I handle these third party cases often.

To someone who has never filed a workers’ compensation claim, or has even been in an accident before, I explain it using this example:
Suppose you work for Fed Ex. You go to work each day, load up your truck, and make your deliveries. One day while loading your truck, you fall of the dock and break your leg. In this instance you have a true workers’ compensation case. You would then file a claim, and you would receive certain benefits.

Now suppose you are that same worker loads the truck and is out making deliveries, when a drunk driver runs a red light and T bones you?

You now have a workers’ compensation claim (because it happened while working), but you also have a claim against the drunk driver. This is referred to as a third party claim.

For the most part, the third party rides the coattails of the workers’ compensation case. The injured party is treated by workers’ compensation doctors, compensated for lost wages, offered temporary disability benefits, and at the end of treatment, typically receives an award or settlement.  

At the same time, a claim is made against the third party driver’s carrier. The third party case could also settle, or it could have to be tried. In the event that we are able to secure a settlement, or favorable award at trial, that amount could be (and in many cases is) subject to a workers’ compensation lien. This means that the employer who paid for the treatment, lost wages and disability, is entitled to recoup a majority of what is paid to its employee, from the third party.
To some, this does not seem fair. And I agree.

The conventional argument goes something like this:  I work for a company for 20 years, paying into their workers’ compensation fund. I get into one accident, and they want to take my third party settlement from me?

For the third party lawyer, their argument is:  I’m basically acting like a collection lawyer for the employer.

The employer’s carrier’s argument is equally compelling:  We paid X amount for the worker’s medical bills, temporary disability, wages, and award.  Why should we be penalized for a third party’s negligence?

Many times we are able to negotiate the lien with the workers’ compensation carrier, but sometimes we are not. No matter what the case may be, the first thing you should do is educate yourself on your rights. Be sure to know what you are entitled to and who you need to report to. Additionally, should you be injured in an accident and need assistance, please feel free to contact us. We would be happy to meet with you, free of charge, to review your case and assist you in obtaining any compensation you are entitled to.