FELL AT WORK & GETTING COMP; CAN I SUE?

This is a topic that comes up often.  It involves the relationship between workers comp and personal injury.  In this particular case, I was asked whether someone who fell at work and is getting workers comp can also sue.

The short answer is:  It depends upon where you fell.  If you were on the premises of your employer, no there is no further action you can take.  If you were on-duty but off-premises, then yes, potentially you can still sue someone other than your employer.

Please allow me to explain.  Workers comp is an exclusive remedy.   When the state created the workers compensation system to compensate injured workers, it took away the right of employees to sue their employers for work related injuries.  Negligence is not a factor in a workers comp case.  In general, the injured worker need only prove that he was hurt while working.  If he can, then the worker is entitled to benefits including paid medical bill, TTD (payment for time off of work) and PPD (payment for disability).  Injured workers can make this claim against the employer, but it is the ONLY claim they can make against the employer.  Thus, it is an exclusive remedy.

That being said, there is nothing in the workers compensation act that prevents an injured worker from filing a personal injury suit against a third party that caused his injury based upon the same circumstance that gave rise to the workers compensation case.   “Third Party” in this context means anyone other than the injured worker himself and the employer that caused the injury.  You cannot sue an on-duty co-worker for causing a work injury, because the employer would still be responsible.

A common example where an injured worker can file both a workers compensation claim and a personal injury claim would be someone driving in the course of employment who is hit by another car.  Someone making a delivery within the course of his employment who is hurt while making the delivery at the premises of another business would be another example.

Two more important thing you should know:  First, the workers compensation carrier has a lien upon the personal injury case for everything that they pay out.  Second, in order to succeed in a personal injury case the victim does need to prove negligence, and that can be a challenge in slip and fall cases

In many cases, it can be advantageous to file both a workers comp and personal injury case for the same event.

For more information about this subject or the author, Chicago injury attorney Steven A. Sigmond, call (312) 258-8188 or return to our website at www.siglaw.com.

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About sigmondlaw

Chicago attorney Steven A. Sigmond, a trial lawyer with 25 years experience representing injury victims, blogs about legal news and topics of interest from a trial lawyer's perspective.
This entry was posted in Illinois, Law Office of Steven A. Sigmond, Personal Injury, SigmondLaw Blog, Workers' Compensation. Bookmark the permalink.

2 Responses to FELL AT WORK & GETTING COMP; CAN I SUE?

  1. Cynthia McGuire says:

    First, not looking to sue just for money. I’m an RN for 21 years & need my legs to work…hard! On 11/17/13 I was going into work. Raining hard & heavy wind. I had less than 10 steps to walk onto a covered entrance where there was a thick rubber mat outside & a 10′ long rug inside where I did wipe my shoes off. After I stepped onto the concrete floor, I slipped & fell. The floor was wet but I didn’t realize it until after I fell. Much like a split leg position. My left leg went to the side like a “Z” with the right one in front of me placed inward. I had 2 witnesses…the nurse I was relieving denied seeing it b/c she was a new employee & didn’t want involved. I work at a steel plant in an on site hospital. There was an employee there for a beam that witnessed it & offered to help me up. I finished his exam & reported the fall to my boss after 2 hrs. I reported pain & swelling of my right knee & I would apply ice & an ace wrap but felt I could stay & work. I only had routine duties & no one else scheduled. The employee who witnessed the fall told me to take pictures of outdoor conditions, walk way, the wet floor & my knee. I did do that..I was in pain & limping so this man knew it. He said pictures would help me if I needed proof plus he said he would give a statement. MRI showed no ligament tear. Did show bursitis. So now I can’t hear full weight on my right leg, there is still swelling & bruising. I have pain behind my kneecap, lower leg & foot. I have numbness & pin pricks in my foot. It wakes me up aching. I don’t do well with pain meds so I get nauseated. I take Naproxen 2-3 times daily. The workers comp claim is active but ai’m unsure if I should file a personal injury claim. This leg hurts even at home with ice packs & an ace wrap. I’m concerned for my work future. I’m a divorced, single mom. My son & I rely on my income. My boss seems understanding but I have a feeling I’ll be let go. Not sure…she said our medical director asked if I was overweight or clumsy. She told him no to both. I’m in good shape & have never had an on the job injury. I work hard & always complete my duties. Not sure what to do. All I know is my knee & lower leg are causing me a lot of pain & frustration. Any advice would be greatly appreciated.
    Thank You,
    C. J. McGuire

    • sigmondlaw says:

      Thank you for the comment. I’m sorry to know that you’ve been hurt. Can you sue?
      First, you cannot sue your employer for an on-the-job injury. Comp is an exclusive remedy. So in your case, if you are an employee of the steel plant, you are barred from suit. On the other hand, if your employer is an outside agency that has assigned you to the location inside the steel plant, you can sue.
      Second, even if you can sue, these facts would allow you little chance to win. Unfortunately, case law has established that the building owner is not liable for a fall on tracked in water near the entrance.
      Third, even if your suit was successful, you should know that there is nothing you can get from a personal injury lawsuit other than money. Your initial comment was that you didn’t want to sue “just for money”, but getting money is your best case scenario in a lawsuit. I only mention that in order to emphasize point number four.
      Fourth, and finally, I do think that you have a good workers comp case. Through workers comp you should be able to get your medical treatment paid for, get paid benefits while off work on doctors orders, AND get a monetary settlement for you injury at the end. I strongly suggest that you retain a good, experienced attorney for your workers comp case if you have not done so already.

      Steve Sigmond

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