Workers' Compensation Information Center

Rather than Collecting Workers' Compensation, May I Bring a Lawsuit Against My Employer?

Workers' compensation is usually the only legal remedy for an employee injured or sickened in the course of employment. The public policy behind workers' compensation envisions a bargain between employers and employees in which workers give up the right to sue their employers in court in exchange for the guaranty of workers' compensation benefits. This reduces tension in the workplace by creating a predictable method for resolving employer-employee conflict. Although workers' compensation awards tend to be smaller than those in lawsuits, employees are not left without support during drawn-out court proceedings with unsure outcomes.

However, some exceptions to the exclusive remedy of workers' compensation exist. Because these vary widely from state to state, seek advice from an experienced workers' compensation attorney familiar with your jurisdiction. To learn whether you can bring a lawsuit for your work injury or industrial disease in addition to or instead of filing a workers' compensation claim, consult a lawyer at our firm.

Exceptions

In most states, a worker injured by the intentional action of his or her employer can sue the employer for the harm in addition to filing for workers' compensation. Examples of such deliberate employer behavior triggering the right to sue may include assault, intentional infliction of emotional distress or known exposure to hazardous conditions. On the other hand, instead of allowing an additional lawsuit, some states have included in their workers' compensation law an additional monetary award when an employer acts intentionally or maliciously to injure an employee.

Employees can also usually sue their employers for other types of harm not covered by workers' compensation, such as illegal discrimination, defamation, invasion of privacy, harm caused by a dangerous co-worker negligently retained by the employer, sexual harassment or damage to property.

Another legal basis for an employer lawsuit available in a few states is the dual capacity or dual persona doctrine, allowing a worker to sue his or her employer when the employer has a second legal relationship to the worker and has harmed the worker in the context of that second affiliation. For example, an employer may injure an employer outside the employment relationship when it commits medical malpractice in the provision of services through a company doctor, when it defectively manufactures a product for public sale that injures the worker or when it allows a dangerous condition on its property in violation of its duty as a landowner.

In addition, an employer may be subject to a separate lawsuit for either bad faith processing of a workers' compensation application or for retaliating against an employee for bringing a workers' compensation claim, such as by demotion or termination.

Co-Employees

In most, but not all, states, lawsuits against co-workers causing injury in the workplace are banned because co-employee injuries are included in the workers' compensation system. Even so, workers' compensation immunity from lawsuits is rarely extended to co-workers who intentionally or maliciously cause injury to others in the workplace.

Third-Party Suits

Even if an injured worker may not be able to sue his or her employer directly, he or she may be able to sue a responsible third party. For example:

• An inspector who fails to require the correction of a dangerous situation
• A doctor who exacerbates a work injury by negligent treatment
• A manufacturer, distributor or seller of a defective product that causes a work injury
• An employer's landlord who fails to correct an unsafe condition on the property

Conclusion

Because legal remedies for work injuries vary widely among jurisdictions, it can be crucial to speak with a skilled workers' compensation attorney.

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