Can I Sue My Employer Instead of Filing a Workers' Compensation Claim?

A normal day at work can turn into a tragedy in the blink of an eye. Whether it’s an accidental slip or fall or an accident due to a piece of malfunctioning machinery, workers’ compensation system was designed to benefit employees who sustained injuries at work, or in the course and scope of work. The workers’ compensation benefits include reimbursement of medical bills, lost wages, and even vocational rehabilitation. The workers’ compensation insurance also covers the injured employee’s dependents in case of a serious injury or death. If for some reason, an injured employee cannot work, he or she will be paid a portion of their income by the employer’s workers’ compensation insurance carrier. The workers’ compensation system provides coverage for all necessary and reasonable injury-related expenses to sustain an employee during the treatment and recovery period. In addition to that, injured employees will also receive coverage for temporary total disability (TTD) and permanent total disability (PTD) or permanent partial disability (PPD). Vocational rehabilitation and retraining may also be a part of the workers’ compensation in some cases.

With so many benefits for the employees, workers’ compensation system has another side to it and has been a subject of debate since its establishment. When someone is injured at work and accepts his employer’s worker’s compensation insurance, he gives up his legal right to sue the employer. This happens in exchange for all the workers’ compensation benefits, which most employers are liable to provide their employees, regardless of who was at fault in the accident. This established trade-off between employers and injured employees shields the employers from large damage verdicts in return for assuming the liability, no matter who was at fault. In most cases, the injured employee cannot hold the employer liable in tort if the injury falls within the scope of worker’s compensation.

The provision of worker’s compensation as the “exclusive remedy” for injuries sustained at the workplace mostly bars employees from filing a typical lawsuit or a personal injury claim. Suing for work injuries is very complicated and is usually not possible under most circumstances. Although this is the general rule, there are some narrow exceptions, which play a crucial role in deciding the fate of your injury compensation claim.

There are narrow exceptions to the sole remedy rule where you may be able to sue your employer. Your employer may try to convince you or tell you that you can’t file a lawsuit even in such cases, so it’s a good idea to get a lawyer’s help in order to learn more about your options. While moving to a civil action against your employer may provide a bigger payout, but you lose the no-fault presumption factor. Therefore, the potential payout is higher, but so is the burden of proof.

Here are some of the rare scenarios where you could sue your employer, or in some cases, a ‘third-party’ who is responsible for your workplace injury. Always keep in mind that the exceptions discussed here may vary from state to state based on the laws of that area.

If you were injured at work and you believe your employer intentionally inflicted the injury to hurt or harm you, you might be able to bring a lawsuit for an intentional tort in the civil court. In other words, when the employer causes harm through tortious acts on purpose, most states will allow you to sue, even if your employer holds a workers’ compensation system. Intentional harm may include your manager or boss physically assaulting you by punching you in the face. Not just physical harm, but non-physical (emotional) injuries, such as pain and suffering can also be categorized under the employer's intentional tort injuries. Some common tort injuries for suing your employer include:

• Battery – any violent or purposeful action with the intent to harm the person by something or someone

• Assault – threatening or intimidating you through actions; the threat of a battery

• Intentional Infliction of Emotional Distress - emotionally traumatizing someone through an extremely terrible conduct

• False Imprisonment – someone confining you against your will and without any legal authority

Other grounds, although a little less common, for intentional torts include:

• Fraud - someone lied to you with a motive to cause you injury

• Defamation – someone saying something untruthful about you with an intent to cause harm, which may include libel and slander

• Invasion of Privacy – typically the case where your private info or photographs were exposed to a large set of audience

• Trespass – someone entering or using your property with no valid permission

• Conversion – someone intentionally interfering with your personal property belonging and making it their own

However, it is not a straightforward task for any employee to provide evidence of the fact that the employer deliberately and purposefully acted to hurt him or her. Only those acts would be considered intentional where the specific and direct intent of hurting the employee can be proved. It is important to note that the employer’s negligence—even gross negligence—is insufficient to qualify as intentional harm. For instance, your manager or boss sent you to work in an area with dangerous fumes or dust that was marked unsafe and did not provide you a breathing mask or warn you of the possible dangers – this is probably not enough to have satisfactory grounds to file a private lawsuit.

Also, the exception of “intentional act” is applicable only to the misconduct by the employer, and does not include co-workers or supervisors. But again, there have been rare exceptions where the employee was able to sue the employer for it was found that the employer approved, or persuaded other employees to harm the plaintiff through cautious, unprovoked physical aggression. In some other cases of exceptions, a few states allowed lawsuits where the employer either took actions that were substantial to cause an injury or deliberately hid the danger so that an injury couldn’t be avoided.

Another employer lawsuit available in some states is the dual capacity or dual persona doctrine. This exception acknowledges that the employer has a second legal relationship to the employee and has harmed the employee in the context of that second affiliation. For example, if you believe you have been injured or suffered other damages because of using a piece of defective equipment at work, you may file a product liability suit against the manufacturer of the faulty equipment. It is important to note that there may be more than one potential parties involved in the distribution chain of the defective product that caused your injury, including the product manufacturer, the manufacturer of the parts, the retailer, as well as the distributors (or other middlemen). Each and all of them are potentially liable for your injury and should be named as defendants while filing a product liability lawsuit.

In order to win a product’s liability claim, you need to prove that you suffered an actual injury or monetary losses. You must also prove that the equipment or product that injured you had a manufacturing defect or did not work as intended and that the defect caused the injury. Also, you must prove a point that you were using the product as it was intended to be used.

Exposure to harmful chemicals in the workplace may happen for many different reasons and result in severe injuries and illnesses. Whether it is due to inadequate personal protective gear or lack of other safety equipment that may be required at a job site susceptible to toxic chemical exposure, if you have suffered a chemical exposure injury at work, you are entitled to get the benefits under workers’ compensation regulations. However, in some cases, the injured employee may bring a toxic tort lawsuit.

The term “toxic tort” typically mentions various kinds of tort cases with one thing in common: the plaintiff claims harm due to exposure to a toxic (or chemical) substance. Some of the most common toxic substances and chemicals that can cause on-the-job injury to employees include things as asbestos, benzene, lead, pesticides, chemicals, solvents, paint, and acids. Generally speaking, the toxic substance injuries can be of two types: acute injuries, which are apparent immediately after the incident, such as chemical burns and poisonings, and latent injuries which may come into effect after years, for example, cancers and lung diseases. Since there is a significant delay of time, it tends to be more challenging to prove latent injuries than acute ones; however, not impossible. There have been incidents where workers brought lawsuits years after the toxic exposure incident and succeeded in getting claims. The toxic torts come under personal injury lawsuits, but sometimes in the toxic exposure cases, it becomes complicated to determine who is at fault for the injury.

If you suffered a medical injury or health problem due to a toxic substance or chemical exposure and you believe that the injury is caused by the fault of someone other than the employer, you have the right to file a suit against them. The injured employee can usually use the manufacturer of the toxic substance and the manufacturers of safety equipment that proved inadequate or inefficient in handling the toxic substance exposure. The best way to go forward in case of an injury by toxic or chemical exposure is to take assistance and advice about your legal rights from an established attorney, especially if yours is a latent injury. Even if the toxic injury is recent, it is never recommended to sue your employer without a professional attorney at your corner.

Your choice from the two potential legal remedies—workers’ compensation or a personal injury claim—may depend on where the chemical came from and who is the owner of the worksite where the exposure occurred.

Being “wrongfully terminated” in this scenario means that the employer fired an employee for any illegal reason, such as discrimination, disability, or retaliation. Sometimes, it may even be because the employee exercised their rights under workers’ compensation. The California law stands strong for the injured employees and prohibits wrongful termination or denial of entitled workers’ compensation benefits by the employer. In fact, in such cases, you can file a civil lawsuit if your workers’ compensation benefits were denied or taken away for no apparent reason. An employer may also be subject to a separate lawsuit for handling workers’ compensation cases in bad faith. In such cases, however, the employee has to put a strong argument proving that the termination from the job was unjust and unfair on specified grounds.

As all employers in California are required to carry a workers' compensation insurance, the state of failure to provide payment for compensatory damages to an injured employee or his dependents during the scope and course of employment may bring an action at law against an uninsured employer. If your company doesn’t carry the workers’ compensation insurance, it is violating a legal duty, and most states will allow you to sue in a civil action for workplace injuries. The "exclusive remedy" rule does not apply in situations where your employer doesn't buy or maintain workers' compensation insurance.

When an injured employee sues the employer, although it opens up more options for you to seek more monetary awards for your damages than what you could have got in a claim made under the worker’s compensation, it may come as an obligation to prove that the employer was at fault and responsible for your injury. Meanwhile, the claimant won't get any payments for medical expenses or other forms of compensatory help from the employer unless and until the lawsuit reaches a settlement or gives a verdict in the claimant's favor.

Texas is the only state that allows employers not to carry any form of insurance against workers' compensation. In other states, including California, you may file a lawsuit against an insured employer to recover damages from any occupational disease or work-related injury. In California, there are special funds that provide the entitled workers’ compensation benefits for injured workers whose employers fail to carry the legally required insurance.

When you want to file a lawsuit against damages, it is crucial to analyze the aspect of a "third-party." In some cases, your workplace injury might have been caused by the negligence of a party other than your employer, i.e., a third-party. If you get injured due to the negligence of a third-party while at work, you may have the right to bring a civil action against that person or entity. These are known as third-party claims and not filed in the realm of the workers’ compensation system. Private third-party claims are filed in state or federal courts and have strict statutes of limitations that apply.

For instance, if you are someone who is in a driving job for a company and while driving your way to a client’s office, you’re hit by a bus driver, who hopped a red traffic signal, causing you some injuries. Now, since the bus driver is at fault, he becomes the third-party here. You can, therefore, bring a civil suit into action against the bus driver for damages. The bus driver’s employer or his insurance company may try to have a settlement without a lawsuit. If a third party’s intended or neglectful behavior result in any work-related injury, it is always suggested to talk to a personal injury attorney about your legal rights.

The third-party claims should be filed within two (2) years from the injury date, and the claims filed against the government entities must reach the appropriate entity within six (6) months from the injury date. The time frame applicable to your specific case may be different in different states.

In cases when you file a lawsuit against a third party responsible for your injury, and you are awarded recovery damages in the trial, you may have to pay a portion of it back to your employer or employer’s insurance company. This is because your employer will now seek repayment of all the benefits you have received in the name of workers’ compensation, such as medical bills and wage losses. It may also happen that your employer may partner with you on the lawsuit for recovering the value of damages they had paid for due to the injury that was caused by the third party.

There are some other exceptions that apply to the workers’ compensation exclusive remedy rule that limits injured employees from filing a lawsuit. Some of them are as follows:

• In some selected states, including California, employees can file a suit against the employer for injuries associated with the violation of their civil rights. It includes racial discrimination or sexual harassment. For example, Claxton v. Waters, 34 Cal.4th 367 (Cal. 2004).

• In California and some other states, an injured or sick employee may file a lawsuit against the employer if the employer was involved in the false concealment of the injury. It applies if the employer tried to cover up or lied about the injury.

• In Texas, dependents of the employee may file a lawsuit based on the employer's gross negligence, or intentional act of misconduct if the employee has died as a result of it.

When you qualify to file a lawsuit and sue the employer in civil court, it significantly increases your chances of acquiring more significant benefits as what you may get through workers’ compensation. Under the system of workers’ compensation, the injured employee can only receive weekly compensation, medical bills, and vocational rehabilitation. A lawsuit, on the other hand, allows the injured employee to take up additional damages, which may include punitive damages, pain and suffering, permanent impairment, among other things. In California and other states, under workers’ compensation regulations, no employee can sue the employer for pain, suffering, disability, or workplace-related injury.

Although it can be identified that the potential compensation out of a lawsuit is higher than from that of worker’s compensation, the predictability of the sum you will receive and how much time the legal proceedings will take can never be guaranteed. If for some reason, you lose the lawsuit against your employer, you might end up with nothing at all. It is advisable to have a well-versed work injury attorney by your side to be confident enough when putting forward a personal injury claim.

On top of lawsuits, you might be able to acquire certain additional monetary benefits through government programs, such as Social Security Disability Insurance (SSDI) or the Supplemental Security Income (SSI), if your injury has caused disability and stops you from going to work.

If you or a loved one has suffered a work-related injury or sickness and believe you may be qualified to sue your employer instead of filing a workers’ compensation, you should consult with an experienced firm like Workers Compensation Attorney Law Firm without wasting any time. Based out of Los Angeles, we can help you establish all the possible benefits and make you aware of all your legal rights. Sometimes, workers' compensation claims can get very complex, especially when a lawsuit against the employer comes into the picture. Get in touch with our Los Angeles workers compensation lawyer at 310-956-4277 and get a free, no-obligation consultation from our well-versed attorney experts regarding your workers’ compensation case. We are ready to fight for you for a better future, call today!