We get calls all the time from people who were injured on the job. They understand the basics of workers compensation law, but they also realize that workers compensation will never adequately compensate them for the pain, suffering, and disability they are enduring, and are likely to continue experiencing into the future. Is there anything they can do to get a fair recovery? Is there any legal claim that can be made outside the workers compensation system?
The answer is, in typical lawyer fashion, “it depends.”
Workers compensation laws were created more than a century ago as a compromise between dangerous industries, such as railroads and factories, and their workers, who frequently suffered crippling injuries on the job. In exchange for guaranteed, no-fault payments to injured workers, employers were made immune from lawsuits brought by their employees.
In many ways, this was a good deal for both sides. Before workers compensation laws, employers were continuously subject to lawsuits brought by injured employees. This litigation was expensive, and the outcome was always uncertain, making it more difficult to plan and budget for the future. From the worker’s point of view, it could be difficult to prove that the employer was negligent, and if no negligence was proven, they could end up getting no compensation at all for their injuries. With the passage of workers compensation laws, employers got predictability and employees got guaranteed compensation for injuries sustained on the job.
Of course, the primary downside for the worker is that worker’s compensation covers medical bills, some time loss, and potentially some disability, but it provides nothing for non-economic damages such as physical pain, emotional distress, or loss of enjoyment of life. It pays on a schedule, so loss of a limb might be worth a fixed amount, but no more. Unfortunately, under modern workers compensation law, even if the employer or a fellow employee was careless, an injured worker almost certainly can’t sue his employer for compensation.
However, there are many circumstances where an injured worker can bring a lawsuit against a person or entity that is not his employer.
One of the biggest cases we’ve handled at the Dubin Law Group involved a construction worker at a large commercial project. This project, like most major construction jobs, had a general contractor and many subcontractors all working together. Under Washington law, the general contractor has a non-delegable duty to make sure the workplace is safe, and that all relevant safety regulations are followed. In this case, my client was an employee of a subcontractor. Under workers compensation law, he was barred from suing his employer, but the general contractor was not his employer. We were able to bring a lawsuit against the general contractor and another subcontractor for carelessly creating a dangerous situation, and we recovered $3 million for our client. Under the workers compensation system, he never would have received anything close to that amount.
Another situation in which an injured worker might be able to sue is where some product or machinery being used by his employer is defective or unreasonably dangerous, either in design or in manufacture. I had a case a few years ago involving a landscaper who was injured when the tractor he was working on flipped over and crushed him. Although workers compensation laws prevented him from making a claim against his employer, we were able to successfully sue the tractor manufacturer for defective design and got the client a substantial recovery.
Yet another situation where a person injured on-the-job might be able to bring a lawsuit is where the injury was caused by the negligence of someone who is not a co-worker. We often get cases involving people whose jobs take them onto the roads, such as delivery people, cable installers, and other service workers. If you are driving to a jobsite and another driver hits your car, technically you were on the job and your claim is covered by workers compensation laws. You have a valid claim for medical bills and time loss through the Department of Labor & Industries. However, because the person who caused the injury is not a fellow employee of your employer, there is no limitation on your ability to file a lawsuit against that person and to seek compensation for all your injuries.
Of course, in a situation like this, the Department will seek compensation for any amounts you recover that it had already paid, such as your medical bills or lost wages. It is well established under Washington law that you cannot make a double recovery for the same items. This right to recovery is called subrogation, and an experienced personal injury lawyer will be able to help you navigate this.
So as you can see, while workers compensation laws do in fact prevent injured workers from suing their own employers, there remain many situations in which an injured worker might be able to sue some person or entity to seek fair and full compensation for the injuries she suffers on the job. The best way to know for sure whether you or a family member has a claim is to speak to a Washington personal injury law firm. An experienced injury attorney should be able to review your situation and advise you whether you have a viable claim or not.