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Many workplaces are very dangerous. Accidents also happen at sites that aren’t particularly hazardous. In addition to the obvious cost to the employee’s health, workplace accidents cost employers money due to work absences and employees and their families often lose income and employment security. Even the general public loses: many injured workers and/or their families end up receiving public benefits of some kind, in large part because the amounts that the workers’ compensation system pays for the injury simply is not adequate.

And work injuries really are a national problem. One study reported that there are over 8 million work injuries every year in the US, with 5,000 deaths and 2.5 million injuries serious enough to cause lost work days. The total estimated cost: $192 billion. Percentage of the total cost covered by workers’ compensation: roughly 25 percent.

The Workers’ Comp Barrier

Unlike people injured in other contexts, injured workers face the limitations of the workers’ compensation system. Under that program, which is set up by state law, employers carry insurance against work injuries, and employees who get hurt can collect benefits without the complexity and delay that a suit for negligence would involve. In fact, there is no need to establish fault on the part of the employer. In return for the relatively easy access to benefits, the employees are generally barred from suing their employer for negligence (known as “the exclusive remedy” rule).

The down side to all this is that amount of compensation that employees can get under workers’ comp is generally much less than they would get if the successfully sued for negligence. Is there anything that can be done?

The answer, not surprisingly, is that “it depends.” And an experienced Maine workplace injury lawyer understands all the finer points involved in deciding whether there is a way to sue outside of the workers’ comp system.

Why Sue Outside of Workers’ Comp?

Under workers’ compensation, you’re generally limited to medical bills and lost income. If you sue outside of the workers’ comp system, the limited damages of the comp system don’t apply; given proper proof of liability, you can recover the same damages available in personal injury suits: pain and suffering, loss of consortium, emotional distress, and any other expenses you many encounter because of the injury.

When Can You Sue Outside Workers’ Comp?

There are a variety of circumstances under which an injured worker may be able to sue for negligence despite the “exclusive remedy” of the workers’ compensation program. The most obvious is when the employer is not subject to the comp laws. The comp program excludes various work, including seasonal and domestic.

An injured employee can also sue the employer when the employer has failed to supply the insurance required by the workers’ comp laws.

Another ground for allowing a negligence suit against an injured employee’s employer is when the injury happens to be caused by someone who employs the victim, but the injury doesn’t actually “arise” out of and occur “in the course of” the victim’s employment. These are extremely complex cases, requiring proof that the victim, although employed at the place of injury, managed to get injured while doing something other than working.

Suits against Third Parties

Yet another circumstance that allows a negligence suit is when the negligent party wasn’t the employer, but a third party. These cases often involve construction sites, where people from many different businesses mingle closely in a dangerous environment. Other examples include workers injured by a defective product which is used at the workplace. In that case, the employee may sue the manufacturer or any other party that could be liable under products liability theory.

If the employee succeeds in recovering damages in a suit against a third party, Maine law specifically requires that the employee repay the employer for any benefits that were paid under workers’ comp, after subtracting a proportionate amount for the employer’s share of the cost of suing (including attorney fees).

The Legal Help You Need for a Workplace Injury

While workers’ compensation claims are far easier to file and collect, a great many comp claims don’t come close to really providing what the injured worker and the worker’s family need. If you are facing the decision whether to file for comp or try to bring a personal injury suit, give us a call; we may be able to help you bring a separate lawsuit that can provide far more reasonable compensation.

In fact, even if you have already filed a comp claim, give us a call. Your comp claim will prevent suing your employer, but there’s a reasonable chance that a third party, not protected by the comp claim, may. At Maine’s Jabar Injury Law, we have been effectively and successfully representing injured employees for decades. We have the experience to identify all your options and to help you make the right choice. Call us today.