Additional Options for Injured Workers

An underappreciated aspect of on the job injuries is that injured workers frequently are not limited to recovery solely from their employers. Oftentimes, a person suffering a work injury can recover in a traditional civil lawsuit against a third party, in addition to his workers compensation claim against his employer.

Workers compensation is a good system: its purpose was and is to streamline compensation for injured workers. The process is more efficient than traditional civil lawsuits because the worker is not required to prove liability, i.e. that someone’s negligence caused him or her to be injured. Instead, the worker need only show that he was injured in the “course and scope” of his employment, which generally means that he or she was injured while on the job, and while performing employment-related functions. So it is a “no fault” system, which certainly makes the claims process more efficient. The fight for injured workers typically is limited to how badly he or she has been injured, and what is the extent of his or her disability. This is starkly different than the civil lawsuit context, in which the injured person is required to prove not only that he or she was injured, but that the defendant is the person responsible.

But what happens when a person is injured at work, clearly is entitled to recover through the workers’ compensation system, but it is in fact the case that someone’s negligence–someone other than the employer–caused the injury? Here is where the injured worker has rights not only under workers’ compensation, but through a traditional personal injury civil lawsuit.

An on the job car wreck is a classic example: a woman working as a delivery driver for a local brewery has her van “t-boned” by a driver who runs a red light. She suffers a broken leg which requires a cast, pain medication and four weeks of physical therapy. She misses one month of work. She was working for the brewery at time, so we know that she can recover from the brewery under South Carolina’s workers’ compensation system. But she also can recover, in a separate civil lawsuit, from the driver who caused the car accident.

This is a highly important right of action because the workers’ compensation system takes back in valuation what it gives in efficiency. In other words, while the worker has the advantage of not having to prove fault, she has the disadvantage that the workers’ compensation system, by the terms of the statute which creates it, provides less than full compensation for the lost wages. This is where the third-party action is valuable: it provides the worker with an opportunity to be fully compensated, through the civil lawsuit, to cover the shortfall which is built into the workers’ compensation system.

Car accidents are a classic but far from the only example where a third-party claim can benefit an injured worker. An industrial worker injured when the equipment he works on malfunctions not only has a “no fault” claim against his employer, he may have a third-party claim against the manufacturer or distributor of the defective equipment. A cook or dishwasher who slices his hand on a meat slicer has a claim against the restaurant where he works, but also potentially a third-party claim against the outside equipment maintenance service who left the guard off the slicer after its last service. A construction worker who falls from a scaffolding has a claim against his employer, but also potentially against the subcontractor whose workers loosened the safety rail while working on the scaffold the day before. A nurse who slips and falls at work has a claim against the hospital, and also potentially against the facilities manager who left the foreign substance on the floor.

The scenarios are endless. The team at Traywick & Traywick to this day marvels at the endless variety of ways in which people can be hurt. From the injured person’s perspective, the critical question is whether his or her lawyer has the smarts and the creativity to identify every avenue of recovery and to pursue each aggressively on behalf of the client.


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