When workplace accidents occur, workers' compensation is usually the only source of compensation. If the employer's workers' compensation insurance covers the worker's injury, the worker is not permitted to sue the employer.
However, the law does not prevent injured workers from filing third-party claims. If you were injured on the job, you need to understand the difference between a workers' compensation and a third-party claim as well as the advantages and disadvantages of these two options.
At Marker & Crannell, our workers' compensation attorneys in Naperville, Illinois, help injured workers obtain compensation through all appropriate channels, including workers' comp and third-party claims. From our office in Naperville, we serve clients in other parts of Illinois, including Plainfield, Aurora, Joliet, Woodridge, Lisle, Wheaton, Romeoville, and Bolingbrook.
The Difference Between Workers' Compensation and Third-Party Claims
The biggest difference between workers' compensation and third-party claims is that the former does not require you to prove anyone's fault. In fact, you can obtain workers' comp benefits even if the workplace accident was your fault. The only tradeoff here is that workers who receive workers' comp benefits are not permitted to file a personal injury lawsuit against their employer or fellow employees.
With a third-party claim, you can sue any party responsible for your injuries. In fact, you can pursue a third-party claim even if you are already receiving workers' compensation benefits. However, in order to obtain compensation through a third-party claim, you need to prove that the defendant (the third party responsible for your work-related injury) was negligent. Negligence can be demonstrated by establishing the following elements:
The third party owed you a duty of care.
The duty of care was breached.
The workplace accident was the result of the breach.
The workplace accident caused your injuries and losses (e.g., loss of income).
If you can prove the above-mentioned elements of a third-party claim, you can obtain compensation even if you are already receiving benefits through workers' compensation. If that's the case, however, you will most likely expect subrogation (we will explain what subrogation is in the next section). An example of third-party liability could be a car accident in which a worker, whose job duties include operating a motor vehicle, is injured in a car accident because a third party (another driver) was not obeying traffic laws.
Subrogation in Third-Party Claims
The term “subrogation” often comes up when an injured worker receives workers' compensation benefits and then files a third-party claim. Subrogation means that your employer (or their insurance company, in most cases) is entitled to a portion of your award in a third-party claim, according to the U.S. Department of Labor.
Thus, if you file a workers' compensation claim and receive benefits through your employer's insurance company but later file a claim against a third party that caused your injuries, subrogation may come into play to ensure that the insurer may recover the amount of money it paid out. Through subrogation, the insurance company can get some or all of the funds it paid out, which is it is something worth considering when filing a third-party claim.
The Advantages and Disadvantages of Filing Workers' Compensation vs. Third-Party Claim
Before you proceed with filing a workers' compensation or third-party claim, you need to consider the advantages and disadvantages of these two types of claims. The advantages of filing a workers' compensation claim include:
You can start receiving benefits right away as soon as your claim is approved.
You will not have to pay for your medical care out of pocket.
You can receive benefits for lost wages if you cannot work due to your injury.
You do not need to prove fault; all you need to prove is that your injury/illness is work-related.
The advantage of filing a third-party claim is that you can recover all of your damages. Your compensation is not limited to medical bills and lost wages (as is often the case with workers' comp benefits). You can also seek compensation for non-economic damages such as emotional distress and pain and suffering.
When it comes to filing a workers' compensation claim, the only major disadvantage is that you cannot recover full compensation, as workers' comp benefits only cover medical bills and a portion of lost wages. As for third-party claims, potential disadvantages include the requirement to prove that the third party was negligent (by contrast, you do not need to prove anyone's fault when filing a workers' compensation claim) and the fact that litigation could take months, if not years, to complete.
Understand What Your Next Steps Are
If you have suffered injuries in a work-related accident, you might want to discuss the possibility of filing both a workers' comp claim and a third-party claim with an experienced attorney. Our attorneys at Marker & Crannell can assess the circumstances surrounding your injury/illness and help you understand your best course of action toward securing the maximum compensation you deserve. Reach out to our office today to schedule a consultation or appointment.