Third-Party Workplace Injury Claims vs. Workers’ Compensation

third party workers compensation injury claims

You want to recover as much as possible for your injury costs, and sometimes workers’ comp alone isn’t enough.

A third-party workplace injury claim can replace workers’ compensation benefits if someone’s negligence caused your injury. Learn about the difference between these 2 types of claims and determine which is best for you to recover compensation.
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You might already know that workers’ compensation is the primary source for financial recovery if you’re injured from a work-related accident or illness. However, fewer people realize that it’s not the only source.

In certain circumstances, you may be able to file a third-party personal injury claim against a negligent individual for a workplace injury. This can be in place of or in addition to your workers’ compensation claim.

But first, let’s review the basics.

Workers’ comp 101

Here are the basic principles of the workers’ compensation system:

Workers’ compensation is a no-fault benefit insurance process.

If you’re injured while you’re on a work site or while performing any duties or tasks related to your job, you can be compensated for your injuries without having to prove that your employer, a coworker, or anyone else was negligent.

Workers’ compensation covers your injuries that happen while you’re at work.

Anytime you’re performing duties related to your job or requested by your employer, you should be covered by workers’ comp. For example, if your employer asks you to run an errand and pick up their dry cleaning and you’re injured in the process, that would be covered under workers’ compensation.

Workers’ compensation covers both on-site and off-site injuries.

The injury must’ve happened while doing your job. This wouldn’t include commuting in your personal vehicle to and from work or an accident that happens off-site during your lunch break, but it would include an accident while traveling from site to site during work hours.

Workers’ compensation benefits cover an injury that happens at work even if it’s unrelated to work.

For instance, perhaps you work in an office setting and your injury happened because you slipped on a puddle in the bathroom. Even though technically it’s not related to your job responsibilities, that would still be a covered injury because it happened during work hours and on the worksite, regardless of how the injury happened.

Workers’ compensation covers medical treatment and a portion of your lost wages.

One of the biggest benefits to workers’ compensation is that you can receive coverage for your costs as soon as your claim is approved. There shouldn’t be a lengthy process that leaves you with unpaid medical bills or out-of-pocket expenses.

However, workers’ compensation won’t cover pain and suffering, emotional distress, loss of consortium, or other non-economic damages, and it doesn’t cover the full value of your lost wages.

Workers’ compensation is an exclusive remedy.

Workers’ compensation protects you — the injured worker — by providing benefits quickly and without requiring proof of negligence (you only need to prove that you were injured and that it happened during the course of your work).

It also benefits your employer because if you’ve received workers’ compensation benefits, you are not permitted to file a lawsuit against your employer for a claim related to that injury. This benefits the employer because it protects them from time-consuming and costly litigation.

Third-party claims for a workplace injury

You already know that if you’ve received workers’ compensation benefits for a specific injury, you’re not allowed to sue your employer for damages related to that injury.

But what if your injury was the fault of someone other than your employer?

In other words, a third party. There is a way to file a lawsuit for a work-related injury claim if you believe that you can’t be fairly or fully compensated by workers’ compensation.

If there was a third party who negligently caused your injury, you can file a third-party workplace injury claim.

These are the elements you’ll need to prove for a successful third-party claim:

  1. A third party (a person or company who is not your employer) owed you a duty of care. That means they had a responsibility to avoid causing harm through their action or failure to act.
  2. The third party breached their duty of care, which means they didn’t act in a way that would be reasonably expected to prevent a foreseeable (anticipated) injury.
  3. That action (or failure to act) caused your injury.
  4. Your injury cost you money in medical treatment, lost time from work, and other expenses.

In essence, these are the same elements necessary for any type of personal injury claim.

Enjuris tip: It’s important to note that you can’t “double-dip.” In other words, if you’ve received workers’ compensation benefits and then you win a lawsuit for a third-party claim, you will likely be required to reimburse the insurance company that provided your workers’ comp benefits for the amount you received.

This is called “subrogation“. If your damage award includes punitive damages, pain and suffering, or additional damages that equal more than what you received in benefits, you would keep that additional damage amount. You would return to the insurance company the amount that it provided as benefits in your original workers’ compensation claim.

Common types of third-party workplace injury claims

Every lawsuit is unique, but there are some common types of workplace claims that tend to result in third-party lawsuits.

Car accidents

Whether your job is driving a bus or you’re simply using your personal vehicle to run an errand for your boss, you’re on work time while you’re on the road. If you’re involved in a car accident where the other driver is at fault, you can pursue a workers’ compensation claim for your injuries and a third-party lawsuit against that driver’s insurance.

If you’re driving in your own vehicle, workers’ compensation will cover your medical expenses but it won’t cover damage to your car. If you’re in an at-fault state (where the responsibility for the damages is on the person who caused the accident), your only remedy would be to pursue a claim against the other driver’s insurance policy.

Along those same lines, if it’s a serious injury that leaves you with lasting pain and suffering and ongoing medical requirements, and a reduced earning capacity because you can’t return to your original job, your best bet is to file a third-party lawsuit against the driver. Even their insurance won’t cover these types of expenses, so you would have no choice but to file a lawsuit if you want to claim these types of damages.

Premises liability

Premises liability is the area of law that’s involved if you’re injured by a hazardous condition on someone’s property. It could be anything from a slip and fall accident to a dog bite.

This would become an issue if your job takes you to site visits, home visits, meetings in other offices or locations, shopping, or to any other place outside property owned by your employer. If the person who was responsible for maintaining the property allowed a hazardous condition to exist (and didn’t provide warning of the danger), and if you’re injured as a result of that condition, you might be able to sue the owner of the property or their insurance company.

Defective product liability

A defective product liability claim happens when you’re injured by a product because it was incorrectly manufactured or designed.

This could happen in 1 of 3 ways:

  1. Design defect. This happens if a product is inherently dangerous because the design wasn’t safe. Even if it’s manufactured exactly according to the design specifications, it remains a dangerous product when used correctly. The only way to correct the defect is to change the design and create the product differently.
  2. Manufacturing defect. If a product is damaged, not assembled properly, or otherwise comes through the manufacturing process incorrectly, it could result in a manufacturing defect.
  3. Inadequate warnings. Even if the product is designed and manufactured exactly as expected, sometimes injuries happen because the labels or packaging didn’t provide sufficient warning to the consumer about possible dangers or incorrect use.

Unlike other types of third-party lawsuits, this might involve an accident that happens in your own workplace. For example, if you were injured by a piece of machinery at work in a way that meets the criteria for a defective product, you could file a lawsuit against the manufacturer of that item instead of filing a workers’ compensation claim.

You could do both (file for workers’ comp and sue for personal injury); however, the damage award you receive will ultimately be reduced by what you’ve received via workers’ compensation. You might be able to keep the damages for pain and suffering, but you’d have to pay back whatever you recover for medical treatment. This is known as “subrogation.”

Toxic exposure

You can file a lawsuit against the manufacturer of a substance that causes you to become ill at work (or that has caused you an illness because of its long-term effects). This might include fumes, lead-based paint, asbestos, mercury, or any other substance that causes harm.

Construction sites

Construction sites, along with mines, quarries, and other sites where people work in dangerous professions, can raise different issues than other types of workplaces. Often, the general contractor is the person responsible for safety on a job site — and that might not be your employer.

If you’re injured on the job in the construction industry or another type of job where you work for a subcontractor who doesn’t own or manage the site, your best bet would be to file a lawsuit against that company if you’re injured.

Risks vs. benefits of a third-party workplace injury lawsuit

If you were injured and aren’t sure how to proceed with a claim, let’s break it down:

Filing a workers’ compensation claim Filing a third-party lawsuit


  • Your benefits, if approved, would begin immediately and you don’t have to pay out of pocket for your medical costs.
  • You have some benefits for lost wages if you’re out of work because of the injury.
  • You don’t need to prove fault — only that the accident happened at work.


  • A personal injury lawsuit sometimes yields a higher overall payout because you can claim non-economic damages.
  • You can recover all of your lost wages, in addition to losses of earning capacity.


  • You wouldn’t receive payment for pain and suffering, loss of consortium, or other emotional distress or punitive damages.
  • Lost wages benefits are only for a portion of what you would’ve earned during the time of your recovery.


  • It can take months or years to complete a lawsuit, and you won’t recover damages for a long time.
  • You would need to repay the benefits that you received from workers’ compensation.
  • You need to prove that your claim meets the elements to establish negligence.

How you recover costs or damages really depends on the circumstances of your accident or illness. You can always choose to only pursue a workers’ compensation claim, but you might be missing out on additional damages that you deserve if your injury was serious and costly.

Either way, it helps to get some expert advice.

The Enjuris law firm directory is a free resource for finding an attorney near you who can evaluate the nature of your claim, the type of injury, who a defendant might be, and what the evidence shows in order to help you decide whether to file a third-party claim for your workplace injury.



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