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Worker's Compensation and Third Party Liability Lawsuits

WORKER’S COMPENSATION CLAIMS AND THIRD-PARTY
LIABILITY LAWSUITS IN ILLINOIS

Every year, thousands of Illinois workers suffer injuries which are serious enough to justify the filing of a formal worker’s compensation claim before the Worker’s Compensation Commission. For some of these injured workers, fault for their injuries rests not with themselves, their employer, or a co-worker, but upon some other person or entity. When that is the case, the injured worker can file a liability lawsuit against the at-fault party and seek additional damages for lost wages, medical expenses, pain and suffering, disability, and disfigurement. The difficult part for many injured workers is fully understanding the relationship between the worker’s compensation cases and the liability lawsuit.

As a starting point, worker’s compensation claims are brought by the injured employee against his employer. It is a no-fault system, meaning that between the injured worker and the employer, it does not matter who is to blame for the injury. The injured worker is entitled to three main benefits in most cases:

• Payment of temporary total disability (TTD) while the injured worker is unable to work, in the amount of two-thirds of his average weekly wage;
• Payment of medical expenses related to the injury; and
• A lump sum for permanency associated with the injury.

In return for receiving the worker’s compensation benefits, the injured worker cannot file a liability lawsuit against his employer or a co-worker for his work-related injury. However, the amount of the benefits that he can receive are usually relatively limited.

There are a number of different ways in which an injured worker may suffer injuries which would justify filing a liability lawsuit against someone who is not his employer:

• Construction accidents – for example where the worker is injured as a result of the unsafe work practices of another contractor on the job site;
• Unsafe premises/slip and fall accidents – for example, where a truck driver slips on a hazardous substance while making a delivery to a customer’s property or where an office worker is injured by a hazardous condition on the common elements of his or her office building;
• Motor vehicle collisions – during any kind of automobile accident while the injured worker is on the job; or
• Products liability – for example, when a worker is injured by a dangerous piece of industrial machinery such as a punch press or a nail gun.

When the worker files a liability lawsuit against someone besides his employer for his work-related injury, he can recover the full range of damages he suffered. This includes damages for lost wages (at 100% of his lost earnings), medical expenses, pain and suffering, disability, and disfigurement. However, to recover in a liability lawsuit, the injured worker must show that the defendant was negligent in causing the injury. The defendant, in turn, may blame the injured worker for his own injuries. This is referred to as contributory negligence, and in Illinois, the recovery of the plaintiff is reduced in accordance with the percentage of fault attributed to him; i.e., if the plaintiff is found by a jury to be 20% at fault, his damages are reduced by 20%. This is true all the way up to the point where the injured worker is found 50% at fault. If the worker is more then 50% at fault, he recovers nothing.

You should recognize that the things that can be recovered in the worker’s compensation case and in the liability lawsuit are either the same or very similar. However, the injured worker does not get to keep all of what is recovered in both cases. The employer of the injured worker has a right to be reimbursed, or a lien, on the settlement the injured worker gets in his liability lawsuit. After all, from the employer’s perspective, it was not their fault either that the injured worker got hurt on the job, and making the at-fault party pay the damages places the financial responsibility for the injury on the person who bears the blame for the accident.

A skilled personal injury attorney can help maximize your total net recovery from the two cases by helping negotiate settlements which maximizes the payout by the at-fault party, which minimizes the amount which must be reimbursed to satisfy the employer’s lien on the settlement. Having the advice of an experienced personal injury can make a significant difference in your bottom line when your case is over.

The relationship between the worker’s compensation claim and the liability lawsuit can be very complex. When you are hurt on the job and suffer injuries which are serious enough to justify both a worker’s compensation claim and a liability lawsuit, it is strongly recommended that you hire an experienced Chicago personal injury lawyer or other Illinois personal injury attorney.

The Law Offices of
Barry G. Doyle, P.C.
5215 Old Orchard Road
Suite 710
Skokie, IL 60077
Phone: 312.263.1080
Fax: 312.263.0153

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