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When Can I Sue While On Workers Comp?

Today’s article will cover situations where you can sue for negligence while on workers’ compensation. 

If you’ve been hurt on the job and are getting workers’ compensation, you might wonder whether you also have a personal injury claim or why it even matters. 

I’ll cover who is entitled to both workers’ compensation and an injury claim, how to start a personal injury claim, and what happens if your personal injury claim is successful.

What Is Workers Compensation?

Workers’ compensation is a type of insurance that guarantees workers receive money for injuries that happen on the job. 

Downside Of Worker’s Compensation



The downside of workers’ comp is that in most cases, you only get compensated for your medical care and part of your lost wages. There’s nothing for human losses, things like pain and suffering, and other limitations caused by the injury that affects your quality of life or your relationships. 

Who Can’t Sue While Receiving Workers’ Compensation

Not every person who is on workers’ compensation has the right to also make a personal injury claim. So I’ll begin with who qualifies to receive workers’ comp, and can also file a personal injury claim. 

The general rule is that you cannot bring an injury claim against your employer if you’re receiving workers’ compensation. 

If you’re hurt on the job and it’s the fault of your employer or a coworker, you’re going to be limited to workers’ compensation only. The law calls this your exclusive remedy.

Who Can Sue While Receiving Workers’ Compensation

But not everyone hurt on the job is hurt by their employer’s negligence. In lots of cases, someone else is at fault. In the law, we call that someone else a “third party,” and you can make an injury claim against the third party even if you’re receiving workers’ compensation. 

For instance, if you’re a delivery driver who is rear-ended while out making a delivery, you can get workers’ compensation through your employer and you can make an injury claim against the driver who rear-ended you. 

Or let’s say you made it to your destination safely, but on the way up the stairs a riser broke and you fell through breaking your ankle. Here again, you can get workers’ compensation from your employer and you may also have a claim against the property owner or a manager for not keeping those stairs in a safe condition. 

How To File An Injury Claim On Worker’s Compensation

To start an injury claim, you must put the other party, or their insurance company, on notice. 

That is, let them know you were hurt. 

There’s nothing formal about this, but doing so in writing is always better. If you don’t have a lawyer, consider sending a letter or an email to the business to put them on notice. Keep a copy of this letter for your records. 

In an auto crash, you’ll usually have the insurance information from the crash report. If you’re injured on someone else’s property, you may have to notify the property owner in writing and ask for their insurance information. 

Usually, they’ll share this but not always. Sometimes people think that an injury claim will go away if they don’t share insurance information. In those cases, you may unfortunately have to file a lawsuit to get their attention. 

Once the claim is set up, you or your lawyer will work with an insurance adjuster to try to resolve the claim. For more about how this works, see my youtube playlist, “Talking To Insurance Adjusters.” 

What To Consider If You File A Personal Injury Claim On Workers Compensation

If you bring a personal injury claim while on workers’ compensation, you may not ever need to go to court. Not all injury claims require you to start a lawsuit to get a fair outcome, but there are some circumstances where you must file a lawsuit to be taken seriously. 

It could be that the insurance company is simply denying your claim or it might be that the statute of limitations is close to running out. 

Complications Of Receiving A Settlement While On Worker’s Comp

If you receive workers’ compensation and you make a personal injury claim, you need to know that it can get complicated if you do get settlement money from your injury claim. 

By law, the workers’ compensation insurance company has a right to be repaid the bulk of what it paid to you in benefits out of your settlement or recovery in the injury case. 

The insurance company for the workers’ compensation is also entitled to something called a holiday, meaning that they can stop paying benefits for as long as you have money left from your settlement. 

For this reason, even if there is a third party responsible for your injuries, bringing a personal injury claim may not always be worth your while. You could spend a lot of time and energy only to take money from one insurance company and hand it to another. 

In cases like these, a personal injury lawyer will try to work out a deal with both insurance companies in advance to make sure that you get taken care of and not just the insurance companies. 

Summary: When Can I Sue While On Workers Comp?

So that’s a quick overview of how to bring an injury claim or file a lawsuit while on workers’ compensation. If you live in New York or Vermont and have questions about whether you can or should bring an injury claim while on workers’ compensation, feel free to give me a call.