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Is It Better to File a Workers’ Comp Claim or a Third-Party Lawsuit?

This question actually presents a false choice, because a workers’ compensation claim does not preclude a third-party lawsuit. However, since these two actions may provide different types and levels of benefits, it’s helpful to discuss them side by side.

Workers’ compensation — This is a no-fault insurance claim. An injured worker does not have to prove anything accept that the injury is work related. If the claim is approved, the worker gets the following benefits:

  • Medical bills — 100 percent coverage for all reasonably necessary medical treatment.
  • Temporary disability (TD) — Non-taxed payment for missed work generally equal to two-thirds of the worker’s lost wages. Injured workers may use leave credits to enhance their TD payments. Certain classes of workers may be eligible for alternate benefits that pay 100 percent of salary for a limited period.
  • Permanent disability (PD) — Supplementary income payments to compensate injured workers who have a permanent limitation that forces them to work at a lower wage.
  • Supplemental job displacement benefits (SJDB) — A voucher for up to $10,000 to pay for necessary job retraining following a permanently disabling injury.
  • Death benefits — Burial expenses plus benefits paid to a fatally injured worker’s dependents at the worker’s total disability rate.

Workers’ compensation benefits are an important safety net for workers, but payments generally amount to a significant loss of income compared to what the worker would make if he or she continued to work. Workers’ comp does not compensate the worker for pain and suffering.

Third-party lawsuit — Workers’ compensation bars an employee from suing an employer or a coworker in most instances for a work-related injury. However, if a third party, such as a subcontractor, equipment manufacturer or materials supplier, is responsible for the injury, the worker may be able to sue under a theory of negligence or strict liability. The worker must prove liability by a preponderance of the evidence. Recoverable damages include:

  • Medical bills —100 percent of all present and future medical care related to the injury.
  • Lost income — 100 percent of all present and future lost income due to the injury.
  • Pain and suffering — Compensation for real but intangible losses, such as physical pain and mental suffering, loss of quality of life, loss of enjoyment of life, and loss of consortium.

A survey of benefits and damages clearly shows that an injured worker stands to recover significantly more money from a third-party lawsuit than workers’ comp. However, this is only possible when the facts of the case lead to a reasonable conclusion that a third party caused the injury.

If you think your workplace injury might support a third-party lawsuit, speak to an experienced injury attorney at the Tous Law Group. Call 714-602-4473 or contact our Orange County office online to schedule a free consultation and case evaluation.

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