Most people hurt at work are told the same thing: file a workers’ compensation claim, and that’s it. Workers’ comp matters, and it pays without anyone having to prove fault. But it was never designed to pay for everything an injury takes from you. When someone other than your employer caused the injury, you may have a second claim that can.
What workers’ comp leaves out
Workers’ compensation pays for medical care and part of your lost pay, and in some cases retraining. It does not pay for pain and suffering, for the full income you lose if you can’t go back to the same work, or for the harm to your marriage. For a serious injury, the gap between what workers’ comp pays and what the injury actually costs can be very large.
Why you usually can’t sue your employer
In exchange for no-fault benefits, workers’ comp is usually the only claim you have against your own employer and your co-workers. The law makes a few narrow exceptions, for example when an employer has no workers’ comp insurance at all. Those exceptions are rare. The real opportunity is usually somewhere else.
Who else can be responsible
A separate injury claim is possible against anyone other than your employer whose carelessness or defective product caused the injury. Common examples:
- A driver who hit you while you were driving or making deliveries for work.
- A property owner whose unsafe stairs, floors or walkways hurt you at a job site or a customer’s home.
- A manufacturer of a defective forklift, lift, scaffold, power tool or machine.
- Another company on the job site, such as a subcontractor whose crew created the hazard.
- A doctor who made your work injury worse through careless treatment.
Construction sites have their own rules
On a construction site, the company that hired your employer is usually not responsible for your safety, because the law presumes it handed that job to your employer. There are exceptions: when the hiring company kept control over safety and its decisions made things worse, or when it knew about a hidden hazard and did not warn anyone. These cases turn on facts that disappear quickly, so they need to be looked at early.
Does a second claim make sense?
The workers’ comp insurer is usually paid back from what the second claim recovers. For a minor injury, that can leave little for you. For a serious injury, the second claim is often where most of the recovery is. An honest look at the numbers should come first. We handle the claim against the other companies, not the workers’ comp claim itself, and we tell you plainly if your case is a workers’ comp case only.
What to do now
- Report the injury to your employer in writing and keep a copy.
- Get the names of every company on the site, the equipment and its owner, and witnesses.
- Photograph the equipment and the scene, and ask that the equipment be kept, not repaired.
- Don’t sign anything from another company or its insurer. Deadlines vary. Act early.
Read more about work injuries and construction site accidents.