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Worker’s Comp and Third Party Lawsuits

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Worker’s Comp and Third Party Lawsuits

When an individual suffers an injury on-the-job, they can usually obtain worker’s compensation benefits, including wage replacement and medical expenses coverage. However, compensation for workplace injuries can happen through a personal injury claim. A third-party case is the most common personal injury claim arising from a workplace injury.

Read on for more information about the benefits available through worker’s compensation and the types of accidents that could warrant a third-party claim with the help of a worker's comp lawyer.

When to Seek Worker’s Compensation for Compensation

Worker’s compensation is a type of no-fault insurance that most private employers in the nation must purchase on behalf of their employees. Worker’s compensation coverage must be available for the employee from the first day of employment.

While the rules for filing a worker’s compensation claim vary from state to state, the process generally includes:

  • The injured employee seeks prompt medical treatment for their injury and informs their employer that they are injured. Most states require the employee to report their injury immediately and the employer to report the injury to their insurance provider within a certain time.
  • Upon receiving the workplace injury report from the employer, the insurance company must report the injury to their insurance provider.
  • If there is lost time from work, there is generally a waiting period before wage replacement benefits begin. In Wisconsin, for example, workers must miss at least three work days before they are eligible for wage replacement. If the worker misses more than seven days, they will be paid retroactively for the first three days. Minnesota has similar rules, but the worker must be out of work for at least 10 calendar days before they are eligible to receive wage replacement for the first three days of work they missed due to their injury.
  • The worker must continue attending doctor's appointments to treat their injury until they've reached maximum medical improvement. If they cannot substantially perform their job tasks but can perform some work, they can qualify for permanent partial disability to replace the income they lost from having to accept a lower-paying position. If they are permanently disabled and can no longer perform any job-related tasks, they can qualify for permanent total disability.

The Types of Benefits Available Through Worker’s Compensation

The main benefits available through worker’s compensation are wage replacement and medical coverage.

There are four types of wage replacement benefits available:

Worker's Comp
  • Temporary partial disability pays a portion of the worker’s average weekly wages if they are temporarily on restricted work hours due to the injury.
  • Temporary total disability pays a portion of the worker’s average weekly wages if they temporarily cannot perform any job-related tasks due to the injury.
  • Permanent partial disability compensates a portion of the worker’s average weekly wages if they must accept a lower-paying position due to disabilities incurred by the workplace injury.
  • Permanent total disability provides a portion of the worker’s average weekly wages until they reach retirement age if their workplace injury leaves them completely disabled and unable to earn an income.

In addition to wage replacement and medical benefits, state worker's compensation programs often provide other benefits, including compensation for funeral and burial services, income replacement benefits for family members of an individual who died from a workplace injury, and vocational rehabilitation and training for injured workers who need to change careers to accommodate an injury.

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If you have been in an accident that has left you injured don't hesitate to reach out to us. We can support you in your claim and provide professional advice when it comes to the court process. Get your consultation today and see how our team can benefit you.


Can Worker’s Compensation Claims Be Denied?

In most cases, worker’s compensation is available regardless of who was at fault for causing the workplace injury.

However, there are several reasons why a worker’s compensation policy could deny your claim, such as:

  • The worker failed to report the injury promptly to their employer.
  • The employer or insurance provider does not believe that the injury occurred at the workplace. There is often confusion as to what “the workplace” actually is. Getting injured in a motor vehicle accident on your way to work is not a workplace injury unless you drive for a living or your accident occurred in the parking lot where you work. Getting injured while running personal errands during your lunch hour is also not considered a workplace injury.
  • The employer or insurance provider believes the worker's pain results from a pre-existing condition, not a workplace injury.
  • The employer or insurance provider believes the injury happened from horseplay or an intentional act by the injured worker to collect worker’s compensation benefits.
  • The employer or insurance provider believes that the worker was impaired by drugs or alcohol when injured.

When is a Third-Party Personal Injury Claim Permitted After a Workplace Injury?

As mentioned, there are times when the personal injury claims process is the appropriate avenue to seek compensation for the expenses and effects of a workplace injury.

Because most employers must provide worker’s compensation insurance to compensate for injuries that occur in the workplace, most individuals cannot file personal injury claims against an employer or coworker and try to prove negligence in court. However, if a third party’s (someone who is not a coworker or employer) negligence caused the accident, they can.

Three Examples of Third Party Liability that Results in a Workplace Accident

One of the most common third-party liability claims involving a workplace accident involves individuals who work as hired drivers or road construction workers in transportation accidents caused by drivers unrelated to their job.

According to the National Safety Council, more than 50 workers die as pedestrians in work zones on U.S. roadways yearly. The U.S. Bureau of Labor Statistics notes that transportation accidents injured 940 driver/sales workers in one year. Many of these accidents resulted from another driver’s negligence. The at-fault driver’s auto liability insurance policy would likely compensate for this accident.

Another workplace accident that often features third-party liability is an accident occurring on a construction site. Determining liability in a construction site accident can be complex because several subcontracted companies often occupy the sites.

If an injury occurs from negligent safety practices by a general contractor or the employee of another subcontractor on the site, the injured worker can generally seek compensation through a personal injury claim. The general contractor or at-fault subcontractor's commercial liability policy would likely compensate for this injury.

A final example of a workplace injury featuring third-party liability involves an office worker who becomes injured due to a condition created by the worker of a contracted company, such as a company offering cleaning services in the building.

Let’s say a cleaning company employee mopped and waxed the office building floors, making them slippery to walk on, and failed to provide prominent warning signs near the hazard.

Because premises liability rules apply to property owners and those in control of the property—even temporarily—the cleaning company could be liable for an office worker’s injury from slipping and falling on the slippery floors. The cleaning company’s commercial liability policy can compensate for this accident.

What Is the Personal Injury Claims Process?

The personal injury claims process generally begins when an injured party hires an experienced personal injury lawyer to help them with their claim. The lawyer and their legal team conduct an extensive investigation into the accident to determine all sources of liability and insurance resources to compensate their client and begin to gather the evidence needed to prove the claim and file the worker's comp claim.

Once the claimant’s injury stabilizes and there is a clearer picture of the effects and expenses involved in their claim, the attorney will establish the claim’s value and send a demand to the at-fault party’s liability insurance provider.

The insurance provider can accept the claim, deny the claim, or offer to settle the claim out-of-court for less than its established value. If the provider offers a settlement, it will often be far lower than the claim’s value. The attorney will negotiate with the provider to get them to increase their offer to a level that can fairly compensate the worker for their injuries.

If the provider fails to pay the claim, the victim’s attorney can submit a personal injury lawsuit in civil court. A personal injury lawsuit is a legal claim the injured party wishes to have a judge or jury consider and determine liability and compensation. All states have a statute of limitations for filing personal injury claims: a deadline for filing a lawsuit in court.

In Wisconsin, for example, the statute of limitations on personal injury claims is three years after the date on which the accident occurred. In Minnesota, the deadline is two years.

While the claim does not have to resolve by the time the statute of limitations expires, a victim must file the claim within this period. Allowing the statute of limitations to expire will generally result in the claimant losing their right to use the court process when seeking compensation for their injury. This expiration will usually mean the claimant cannot get a settlement as well, as most insurance providers will not pay a settlement if they aren’t facing litigation if they refuse.

The parties can offer and agree to a settlement on a personal injury claim at any time during the personal injury claims process, as long as the court has not yet decided the matter.

The Type of Compensation Available Through a Personal Injury Claim

While worker’s compensation provides wage replacement and medical coverage, individuals seeking compensation through a personal injury claim have an expanded list of expenses and effects, including:

  • All medical expenses associated with the injury or associated complications.
  • Wage loss for the time the worker was too injured to perform their job tasks.
  • Loss of earning capacity if the worker experiences permanent injuries that impair their ability to perform work-related tasks.
  • Property damage sustained by the injured worker in the accident.
  • The impacts the injury had on the worker’s life such as physical pain and suffering, emotional distress, or loss of enjoyment of life.

How an Attorney Can Help You With Your Claim

Russell Nicolet - Managing Attorney at Nicolet Law
Russell Nicolet, Worker's Comp Attorney

Many personal injury lawyers can assist individuals with a worker's compensation or personal injury claim. In fact, during the free case evaluation, they will even assist the injured party in determining which process is the appropriate method for seeking compensation for their injuries, based on the facts of their case.

A free case evaluation is a no-obligation conversation that a prospective claimant can have with an experienced attorney in which they can discuss their case, learn more about the process of seeking compensation, and obtain information about the attorney’s experience and approach to cases like theirs. Contact a personal injury attorney today to start your consultation.



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Wisconsin Locations:

402 Graham Ave.
Suite 305
Eau Claire, WI 54701

Phone: (715) 835-5959
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Suite 105
Green Bay, WI 54301
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Hudson, WI 54016

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La Crosse, WI 54601

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Suite 220
New Richmond, WI 54017

Phone: 715-226-6164
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Rice Lake, WI 54868

Phone: (715) 790-1114
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River Falls, WI 54022

Phone: (715) 716-5869
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Superior, WI 54880

Phone: (715) 718-2969
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Suite 303
Wausau, WI 54403

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306 West Superior Street,
Suite 606 West
Duluth, MN 55802

Phone: (218) 729-0628
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Hibbing, MN 55746

Phone: 218-217-0659
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Minneapolis, MN 55414
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Woodbury, MN 55125

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