If an accident or incident happens at work involving two employees, resulting in one of the employees being hurt as a result the actions of the other employee, it is not always clear cut what recourse the injured employee has. Can he or she file a workers’ compensation claim against the employer for compensation and also pursue a personal injury claim against his or her co-worker? We have asked attorney, Alaina Sullivan, and here is what she had to say: What Is Workers’ Compensation? Workers’ compensation is a form of insurance provided through an employer to employees for injuries or illnesses that result from job duties or occur while on-the-job. The benefits offered through workers’ compensation will cover past and future medical expenses, lost wages due to permanent or temporary disability and even attorney’s fees, if an attorney is needed to pursue the benefits. However, in exchange for filing for workers’ compensation, the employee waives his or her right to file a third-party personal injury claim against the employer. What Is a Work-Related Injury? A workplace accident is something that is unexpected but connected to the employee’s job duties that ended up in an injury or loss. Many times, a workplace accident is caused not by an external, unexpected event but by a fellow co-worker. Even if the workplace injury happened because of the actions of a co-worker, the injured employee needs to immediately notify the employer and seek medical care, if appropriate. It is important that the injured employee document what happened that led up to the injury, noting the facts and circumstances of everything involved. If the employee wishes to make a workers’ compensation claim, the employer will provide this claim form and will submit it for the employee once it is complete. Restrictions with Workers’ Compensation Many employees do not consider co-workers to be in the same category as employer when it comes to who they cannot sue if they take workers’ compensation benefits. However, most workers’ compensation policies do not allow for the injured employee, who was hurt in a workplace accident caused by a co-worker, to file the claim and then sue the other employee who caused the incident. In fact, this other employee is lumped into the “employer” category, meaning a third-party personal injury claim cannot be filed against the employer after filing for workers’ compensation. If the injured employee was hurt by an independent third-party, such as a contractor, who happened to be on the job site and caused the accident, the injured employee can file a third-party negligence claim against that person since the contractor is not technically an “employee” under the law of the employer involved. Gross Negligence However, if the injured employee received a work-related injury because of gross negligence of the co-worker, the employee can file an additional lawsuit to cover pain and suffering damages. Gross negligence includes behavior that is considered willful, wanton or reckless. The behavior of this employee must be so egregious and intentional, and he or she must be acting with complete disregard for the safety of others around him or her, for this standard to apply. These cases are not always easy to prove, and the employee will need to show that there was a high likelihood that the actions of the other employee at the time would result in an injury. If an injured employee has been involved in a work-related accident that was serious enough to result in an injury that is not fully compensated through workers’ compensation, it is recommended that he or she speak with an attorney to talk about other options. These options can include this additional personal injury case, but this option should not be taken lightly. If the employee does file a third-party claim and is unsuccessful, he or she may end up having to pay for the legal fees for the employer and co-worker and may end up jeopardizing his or her ability to receive any compensation at all, even through workers’ compensation. Contact an Attorney Today If you have been injured at work due to the actions of a fellow coworker and are unsure of whether to pursue workers’ compensation or a third-party personal injury case, a workers’ compensation attorney can help review your case and discuss your options. An attorney can listen to the facts of the case and can best advise you on how to proceed. Contact an attorney experienced in workers’ compensation law to schedule a consultation today. Additional Resources Time to File a Workers' Comp Claim? Why Should I File For Workers' Compensation?
