When You Can Sue and When You Can Claim Workers’ Compensation

If you were recently injured as a result of an employer’s or co-worker’s actions, you are probably hoping to receive some compensation for your injury. There are two primary ways to receive compensation in this kind of situation:

  • File a workers’ comp claim
  • File a personal injury lawsuit

There are advantages and disadvantages to both of these methods. However, both these options may not always be available to you. This guide will explain when you can file a lawsuit and when you can file a workers’ comp claim.

Your Options

The general rule is that if an injury qualifies for workers’ comp, then workers’ comp must be used for compensation. In other words, if you are able to file a workers’ comp claim, then you may not file a personal injury lawsuit. Additionally, if you qualify for workers’ comp, you probably will not be able to use your personal health insurance to pay for the injury either.

A workers’ compensation claim is viable when an employee suffers a work-related injury. The first requirement is that the worker is an employee, which is a category of employment. If a portion of your paycheck is withheld for tax purposes, then you are an employee. The second requirement is that the injury is work-related. An injury is work-related if the action which caused the injury was done to benefit the company. If both of these requirements are met, then a personal injury lawsuit is most likely not an option.

The Exceptions

There are a few exceptions to this rule. If one of these exceptions apply to your injury, then you will probably be able to file a personal injury lawsuit:

  • The injury was caused by a third party – Even if the injury is work-related, if the person who caused it is not related to the business in any way, you can file a lawsuit against him or her.
  • The injury was caused intentionally – If someone maliciously caused your injury, criminal charges will probably be filed, but you can file a civil case as well.
  • The injury fails to qualify for workers’ comp – If an unusual circumstance makes your injury ineligible for workers’ comp, filing a personal injury lawsuit becomes an option.

In personal injury lawsuits, the plaintiff can be compensated for non-financial losses, such as pain and suffering or emotional distress, which is the primary benefit a lawsuit has over workers’ comp. If it looks like you will be filing a lawsuit, the first thing you should do is hire a personal injury attorney, like a personal injury attorney in Milwaukee, WI.



Thanks to Hickey & Turim for their insight into who you can sue and when you can claim workers’ compensation for an injury.