You're at work and you trip on the edge of a carpet that's been sticking up just a little too much. You fall into the wall bumping your elbow hard. It hurts, but you decide to keep on working because you don't want to cause any trouble. As days go by, the pain and swelling in your elbow don't go away and the condition is now interfering with your ability to perform your duties at work.
You could try to be the silent hero and continue to work without telling anyone about it. But this approach is not necessarily the best course of action and you are wondering if that carpet should have been repaired. It's better to tell someone about it as the pain and swelling in your arm may get worse and interfere with your ability to work at all. Then, you'll be out of work and not making any money.
You may be wondering, "If I'm injured at work, can I sue?" This is a valid question and one you should be asking yourself anytime you are injured at your place of employment.
This guide is to help you understand the process of getting workers' compensation insurance and in what situations you can sue your employer for workplace accidents resulting in an injury at work.
Can I Sue My Employer After an Injury at Work
The first reaction of many employees, and on the unfounded advice of family and friends, is to want to sue after being injured on the job. It's a natural reaction after hearing so many cases in the news. However, it's not that simple, and your family and friends are probably not experienced attorneys or experienced lawyers.
Let's take a more educated look at what you can do when injured at work.
In most cases, workers' compensation insurance covers injury claims made by employees who have suffered a workplace injury. Aside from the state requirement, employers pay for insurance to offer their employees financial protection. They also want to avoid being sued. However, there are situations in the workers' compensation system when an employee can choose to sue the employer or pursue a personal injury lawsuit.
One such instance is if the employer caused the injury intentionally. If you feel that your employer intentionally harmed you in any way, it's possible to bring a personal injury lawsuit against them. As a general rule, it is important to be sure that the injury was intentional on the employer's part. If there was no intent on the employer's part, a lawsuit would not be an option.
Another possible situation for suing your employer is if your employer is not adequately insured. While it is mandatory in New York for employers to carry workers' comp, some employers may not have sufficient coverage or might not have any compensation insurance. In these cases, you would have the option to file a lawsuit to recover damages, lost wages, and medical expenses that would have been covered through workers' compensation insurance.
One other possibility is a third-party claim or lawsuit. This pertains to an injury sustained while you are working but is not your employer's fault. Instead, it's the fault of a third party who may be responsible for damages. Some examples of third party claim situations include:
Injury from a defective product from a manufacturer
In each of these examples, the negligent party is potentially responsible and may be sued for damages. Only the counsel of a skilled lawyer can analyze your particular situation and give the available options.
Can I Get Fired If I Sue My Employer?
You might feel that your employer won't like the idea of you filing a personal injury lawsuit. You might also feel that they will try to get back at you in some way, such as by firing you or just making your life at work miserable. While it may be a concern for employees, the concern is borne out of paranoia and not based on fact.
As long as you filed your personal injury lawsuit in good faith, your employer is not allowed to fire you. In fact, your employer must make reasonable accommodations for your injury or resulting disability under the Americans with Disabilities Act. And any attempt by your employer at retaliation is illegal.
Of course, that does not mean that your employer will welcome you into your workplace with open arms. You can expect some tension to be present, but you have every legal right to continue working at your place of employment.
On the other hand, some employers will not follow the law perfectly. In some cases, they may try to fire you for a reason other than your injury, such as your performance, in an effort to skirt the law. In other situations, they may try to make your working conditions uncomfortable or intolerable to try to drive you out.
You will probably know if your employer is trying to do this because it will be a drastic change from the work environment you are used to. If you suspect that your employer is doing anything in an attempt to drive you from your job or intimidate you into quitting, you should seek legal advice as soon as possible. In these cases, your employer is breaking the law and you have the right to pursue legal action.
Can I Sue If I've Received Workers' Compensation?
If you have received workers' compensation benefits you may think that you're not able to sue your employer. You might think that you're "double-dipping" by claiming workers' comp and pursuing a personal injury claim. However, this is not necessarily true. There are situations where you can sue even if you have received workers' compensation.
If your employer intentionally tried to hurt you, you can pursue legal action. However, you must be sure that the intent was clear. If it was negligence on the employer's part, it would not be sufficient grounds to sue. It must be shown that your employee acted with clear intent to injure you.
Another possibility is that your employer was not adequately insured, or your employer didn't have any insurance at all for comp benefits. In this case, according to workers' compensation law, you can file a lawsuit against your employer to regain benefits that would have been covered by adequate insurance.
If you do decide to sue after receiving workers' compensation, it's good to keep in mind that they are handled in different courts with different rules. To prevent anyone from trying to take advantage of receiving two injury awards, if you do receive a personal injury settlement in addition to workers' compensation, you must pay two-thirds of those benefits back to the insurer.
While this may sound like a financial loss at first, amounts can be negotiated by a skilled attorney. A Section 32 Global Settlement allows the injured worker to take a lump-sum settlement and close out the workers' compensation case. This "global settlement" often involves the insurance company giving up some or all of the compensation it would usually take.
As a result, with the right lawyer, you can have a lump sum of money from the workers' compensation case as well as the benefits coming from the personal injury settlement. The process is complicated and best left to the expertise of your injury attorney, but the end result could be much more beneficial to you.
Workers Compensation vs Personal Injury Claim
There may be some confusion between workers' compensation and personal injury claims. Some people might even think they're the same thing. Let's take a closer look at each for a clear picture of the differences between the two and when they might apply to your situation.
Workers' Compensation Benefits: When an employee is injured at work, the injured employee can make a workers' compensation claim. If approved, the injured worker is entitled to receive benefits to replace any losses incurred from missing work. Possible reimbursements include covering lost wages, medical bills, and rehabilitation. Employers are required to pay into workers' compensation insurance to cover expenses for an employee's injury. The process is straightforward, and payment is timely. It's also New York State law, and employers must have it for full and part-time employees.
Personal Injury Claim: If an employee is injured at work and the circumstances are beyond those covered by a workers' comp claim, then the employee may seek a personal injury claim. Unlike workers' compensation, these lawsuits, also known as tort law, are less predictable and can take more than a year to be won or settled in court. Personal injury claims also take into account pain, suffering, and emotional trauma caused by the injury, something workers' compensation claims do not. There is a clear fault involved with personal injury claims, and the fault lies with the employer.
In most cases, after you have been awarded workers' compensation benefits, you will find that your medical condition has improved or even been resolved. But what if your condition gets worse? Can you get further benefits based on the unexpected complications that developed from the original injury? Can you make another workers' compensation claim?
If it is more than seven years after the injury and three years after the last payment, you must use a special form since benefits will come from a special state fund. Always check with a qualified attorney to see if this applies to your situation.
Where to Go for Help
It's important to know your rights as an employee and to be aware of what you're entitled to legally. You should never be asking yourself what you should have done in the situation of an injury at work. Instead, take action and seek out the guidance of good legal counsel.
Workers' compensation cases and personal injury claims are complicated and best left to workers' compensation lawyers or injury lawyers. You should not stress over the legalities of workplace injuries and what you are or aren't entitled to.
Suppose you believe that your employer has caused you an injury, and you are seeking legal help while still working. In that case, our experienced workers' compensation attorneys can look at your medical records, review your circumstances, and help you build a strong claim.
Our law firm values the attorney-client relationship and aggressively pursues maximum compensation.
Contact Terry Katz & Associates online or call 888-488-7459 today for a free consultation. Our Long Island Workers Comp lawyers are ready and available to advise you of your legal rights.
Terry Katz, Esq.
Terry Katz, Esq., the founding Member of the firm, handles all aspects of Workers’ Compensation and Social Security Disability cases.