The general rule is that workers’ compensation benefits are an injured employee’s sole and exclusive remedy when he or she is injured at work. Even if an accident was caused by a co-worker who is employed by the same company, an injured employee can’t sue his or her employer in a court of law. What comes to issue is that if a serious work injury or death occurs on a construction site, workers’ compensation benefits fall short. The benefits that are payable just don’t adequately compensate victims or grieving families.
A third party claim arises in a construction accident when an injury or death is caused by an employee of a company other than your employer. In the context of construction accidents, they’re not at all uncommon. Many different companies, contractors, sub-contractors and employees might be working at a construction site at any given time, and an employee of one company might cause an accident that injures an employee of another company. For example, Acme Electric might be installing lights in a parking garage while Zenith Electrical Supply is on the job site with Acme making a delivery of Electrical supplies. Zenith’s driver comes around a corner in the garage while looking at a message on his phone, and he hits a ladder that an electrician from Acme is on. The electrician falls to the concrete floor, and he’s severely injured. That’s a third party case and it’s one of the few exceptions to the sole and exclusive remedy rule of workers’ compensation law.
Although third party accidents often happen on construction sites, the law controlling them is entirely different than the law involving workers’ compensation. Third party cases involve the law of negligence, and they’re brought in a court of law as opposed to workers’ compensation cases that are brought in an administrative agency. To prove negligence, the injured construction worker must prove that:
The law requires that every one of those elements be proved. A failure to prove any single element results in the negligence case falling.
The advantage of being able to bring a negligence case lies in the damages that the construction worker who was injured by the third party can seek. Those generally include:
Maintaining a negligence case in a court of law while also pursuing a workers’ compensation case for the same injury is permitted. The law doesn’t allow two recoveries for the same injury though.
Assuming that the injured construction worker receives a settlement or verdict in the negligence case, a lien arises on that case with regard to any sums paid out in the workers’ compensation claim. The workers’ compensation insurer is then reimbursed from the proceeds in the negligence case. Without a third party case, the claim operates as a loss for that insurer.
Bringing two cases for a single injury is complicated, but it’s often permissible in construction accidents. The law and procedures in each case are different, and the injured worker is likely to have a better financial recovery from the negligence case. The workers’ compensation case will keep the injured worker and his or her family going through until such time as the negligence case is resolved.