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.