In all states in the U.S. except Texas, employers are required to purchase workers compensation insurance — a specific kind of “no-fault” insurance designed to provide timely medical care and wage replacement for workers who sustain an on-the-job injury while simultaneously protecting employers from lawsuits. As a rule, worker’s compensation is looked upon as a win-win system. Injured employees receive prompt, appropriate medical care and at least a portion of their wages while they are unable to work. In exchange, they give up the right to sue their employer for the cost of medical care, lost wages or pain and suffering.
There are very few exceptions to this hard and fast rule. However, there are a few instances in which an employee can sue an employer for an on-the-job injury outside of worker’s comp. For example, if an employer causes intentional harm to an employee or has no workers comp insurance or inadequate coverage, the employee may be able to sue.
An employee who is injured as a direct result of an employer’s intentional act may be allowed to sue the employer outside of worker’s comp. However, most states are very specific about what constitutes an “intentional act.” Negligence, even gross negligence, rarely fits the bill. For example, if an employer fails to maintain safety equipment and the failure of that equipment causes an employee to get hurt, that would constitute negligence, not an intentional act. In most states, that’s true even if the employer could have reasonably known the equipment would fail and an employee could get hurt.
So what does constitute intentional harm? In most cases, the injured worker must prove that the employer acted with the direct intention of causing physical harm. For instance, a boss who pushes an employee, causing them to fall down a flight of stairs would be guilty of intentional harm. But if that same employee fell down the stairs because the employer failed to repair a broken step, the employee would likely not be able to sue.
There are, however, limited exceptions to this rule as well. For example, in Louisiana, an employee may be allowed to sue if they can prove that the employer acted in a way that was “substantially certain” to cause an on-the-job injury. And in Florida, employers can be sued if it can be proven that they knew a dangerous condition existed and, rather than fixing it, intentionally took steps to cover it up.
If an employer fails to have workers compensation insurance as required by state law, an injured employee always has the right to sue the employer in civil court. Further, the employee can sue the employer for any amount. They are not limited by workers comp formulas or caps. However, to prevail in a civil suit, the worker must establish that their injury was the employer’s fault. Thus, a worker injured in an accident caused by their own carelessness or simple “bad luck” will be unlikely to obtain a judgement against the employer in court.
In some cases, an employee who sustains an on-the-job injury may have a legal cause of action against a third party who is not their employer. For example, if an employee is injured while using a defective piece of equipment in their employer’s shop, the manufacturer of that piece of equipment may be legally liable for the injury. In that case, the employee would have a right to sue the manufacturer for medical bills, lost wages and pain and suffering by filing product liability lawsuit.
Similarly, if a worker is injured by a toxic substance, they may have the right to sue the manufacturer of that substance in civil court. Workers who have been injured by asbestos, benzene, silica and other toxic substances, for example, have successfully sued the manufacturers for failing to warn of potential dangers. Manufacturers that fail to properly label dangerous chemicals that subsequently cause an on-the-job injury may also be sued.
Lastly, an employee may sue a third party who is responsible for an accidental injury they sustain on the job. For instance, a delivery person who is struck by a car while crossing the street could sue the driver of the car (or their insurer) for damages.
About the Carmoon Group
The Carmoon Group, Ltd. is an independent insurance broker located in Hicksville, New York. We offer a comprehensive array of business insurance products, including property insurance, liability insurance,umbrella insurance, business automobile insurance and workers compensation insurance at a price you can afford. So, why not give us a call today to set up an appointment for your insurance review? Or if you’re too busy to call, just reach out online and we’ll contact you at a convenient time.