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Workers' Comp or Lawsuit? 3 Considerations

By Brett Snider, Esq. | Last updated on

If you've been injured at work, you'll probably need compensation. But do you accept workers' compensation or try to sue in civil court?

In most cases you cannot receive workers' comp and sue for your injuries, as workers' comp is intended to substitute for the kind of compensation an injured worker might receive in court. However, each work injury case is different, so it's important for employees to consider their options.

When contemplating whether to sue or collect workers comp, you may want to start with these three considerations:

1. Is Workers' Comp Not Covering You?

Workers' compensation ("workers' comp" for short) is a form of insurance that most employers are mandated to have for employees who are injured or disabled on the job. Each workers' comp program and regulations are state-specific, but most allow an employee to collect workers' comp even if the injury was due to his or her own negligence.

Workers' comp covers medical care and replacement income, but with long-term injuries and disabilities, there is often a maximum benefit amount. If workers' comp won't fully cover your costs or you've been denied altogether, you should consider suing.

2. Medical Care May Not Be Covered.

Since workers' compensation is a form of insurance, you should be aware that like any other medical-insurance interaction, it may be like pulling teeth to get your employer and its insurer to cover your medical care. In one notable case, a New Mexico man was able to secure his right to compensation for medical marijuana via workers' comp, but only after over a year of legal rigmarole.

As that case shows, you may need to sue your employer to get your legal rights recognized.

3. Injury Was Caused by Malice, Defect, or Third Party.

You may also choose to sue if you believe your injury was caused by:

  • Malice. If you think your employer intentionally acted to cause your injury, you may get more damages by suing.
  • A defect. If you believe a defective safety mechanism may be the cause of your workplace injury, you can seek compensation by suing that product's manufacturer.
  • A third party. If another company or individual may be the cause of your work injury, you can sue them in civil court for compensation.

But keep this in mind: If you receive any civil compensation, you may have to pay back any workers' comp you received prior to the judgment. Your employer may also join in your lawsuit against a third party to recover what was paid out in workers' comp benefits.

Take a moment and consider these three points -- perhaps with an attorney's help -- before choosing between workers' comp and a lawsuit.

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