Can You Sue While Collecting Workers' Compensation?

Can You Sue While Receiving Workers' Compensation?

Yes, you can file a lawsuit while collecting workers' compensation benefits, but only under specific circumstances. A workers' compensation claim is a no‑fault system designed to provide medical care and a wage replacement schedule. It typically preempts most civil suits against the employer for workplace injuries. However, the law allows you to pursue a secondary claim—such as a personal injury lawsuit—if you suffer a new injury unrelated to the original claim, or if the employer's negligence contributed to a separate harm.

Preemption and the Workers' Compensation System

Under federal and most state statutes, a workers' compensation claim preempts civil action for injuries arising from the same employment incident. This means you cannot sue your employer for the same injury or for damages that the workers' comp plan covers, such as medical expenses or lost wages. The preemption doctrine protects employers from multiple lawsuits and ensures a predictable compensation process.

When a Secondary Claim Is Permitted

Two main scenarios allow a secondary lawsuit: (1) Subsequent Injury—If you sustain a new injury after the original workers' comp claim is closed, you may file a new claim or a civil suit. (2) Wrongful Conduct—If the employer's actions caused a separate injury or if an unrelated third party's negligence contributed, you can sue for damages beyond the scope of workers' comp. For example, if an employer's unsafe equipment leads to a fall that damages property, you might pursue a property‑damage claim.

Procedural Requirements for Secondary Suits

Before filing a lawsuit, you must: 1) Provide written notice of intent to sue to the employer and the workers' comp board, 2) File a "notice of intent" within the statute of limitations, and 3) Submit a "claim of damages" if the claim is for a new injury. Failure to follow these steps can result in dismissal or loss of the right to sue. Many states require a "notice of claim" period, typically 30 to 60 days, to give the employer a chance to settle.

Strategic Considerations and Potential Outcomes

When contemplating a lawsuit, weigh the benefits of a potentially higher award against the risks of prolonging litigation and jeopardizing workers' comp benefits. A civil suit can award pain and suffering, punitive damages, or additional medical costs not covered by workers' comp. However, the employer may counter with a claim that the injury was covered by the workers' comp plan, leading to a complex legal battle. Consulting an attorney experienced in workers' compensation and personal injury law can clarify the viability of a secondary claim and help navigate the procedural hurdles.