How to File a Workers Comp Lawsuit

Injured worker filing a lawsuitFor some injured employees, suing their company outside the workers comp system is the only way to achieve justice.

Workers compensation is an insurance policy designed to keep injured employees and their employers out of court. Usually, the program works as intended.

In some cases, however, suing the company (or one of its adjuncts) through a personal injury claim is the only way a sidelined worker can achieve justice.

Can I Sue If I’m Injured at Work?

The short answer is: Yes. And sometimes it is a necessary course.

While workers compensation provides money and other benefits to employees injured at work, disability payments — temporary or permanent — are often comparatively low.  Also, workers compensation makes no consideration for pain and suffering.

Additionally, as a no-fault program, workers compensation includes no opportunities to seek punitive damages when employees’ injuries can be linked to an employer’s inadequate safety controls or dangerous working conditions.

The possibility also exists that a work-related injury (or illness) came about while using a product provided and maintained by a third-party supplier. In such cases, the manufacturer and the supplier might prove liable.

Other areas that constitute grounds for suing an employer for work-related injuries or illnesses include:

  • Injuries involving a toxic substance
  • Injuries intentionally triggered by an employer or fellow employee
  • Injuries resulting from an employer’s purposeful or appalling behavior
  • Occasions when the employer wasn’t required to carry workers compensation insurance, or was required to do so, but failed in that responsibility

In short, it’s crucial those injured on the job have a firm grasp on their rights to seek relief outside workers compensation.

Statute of Limitations

Whether it’s an employer, a supplier, or an absolute stranger alleged to have been at fault, time limits apply to legal claims for injuries and illnesses caused by others. The term for this is “statute of limitations.”

Miss that window of opportunity and the injured person’s opportunity to present a legal claim will be blocked and his/her right to seek damages denied.

Because the lion’s share of personal-injury suits are decided at the state-court level, each state maintains its own statute of limitations; accordingly, it’s a good idea for an injured worker to know the time constraints in the state where the accident occurred. It’s an even better idea to decide as early as possible which course is wisest for the injured worker to take. Delays can damage a claim in the eyes of a jury.

Plaintiff’s attorneys — that is, lawyers who represent clients asserting monetary claims against others — know the local rules pertaining to the statute of limitations. Potential clients should consult with a workers comp attorney, who, usually at no charge, will advise on time constraints, weigh the merits of a case and offer advice regarding the likelihood of success.

Step 1: Summons and Complaint

A well-designed and time-honored personal injury lawsuit process is triggered once you and your legal team have decided that legal action is the best course of action. The first of these is the filing of certain documents with the clerk of court whose jurisdiction includes the place where the injury (or illness) occurred. A copy of those papers will be served — that is, legally presented and noticed — on the defendant(s).

File the Complaint

The complaint, or petition, is a formal legal document laying out the legal and factual foundation of a personal-injury lawsuit. In other words: Here’s what happened, and here are the laws the defendant broke contributing to the mishap.

The complaint also describes why a court has jurisdiction to hear the case.

Continuing, the complaint must explain what relief the plaintiff is seeking, including a minimum amount of money (damages) demanded. Some states assign personal-injury lawsuits to courts depending on the amount sought. In Florida, for instance, lawsuits seeking up to $15,000 are assigned to county courts; demands for more than $15,000 land in circuit courts.

The complaint will conclude with the plaintiff’s signature, or that of the attorney representing the client bringing the suit.

Serve the Defendant(s)

Traditionally, the plaintiff is required to file a summons — that is, a document identifying the parties involved in the litigation and explaining to the defendant(s) that they are being sued. Usually, the summons is certified with the signature of the court’s representative (the clerk of the court) and the clerk’s seal.

Along with the complaint and summons, the plaintiff must pay a filing fee, which customarily amounts to no more than a few hundred dollars.

Finally, a copy of the complaint and summons must be served on the defendant(s). Serving the summons should be easy. It can be done by an adult who is not party to the case or you can hire a company that does this as a business. If the unlikely event the defendant tries to avoid being served, probably best to hire someone else.

Remember this: Absent proper service, the court lacks jurisdiction over the defendant(s).

No jurisdiction, no due process.

No due process, no finding.

No finding, no judgment.

Step 2: Discovery

Remember in “My Cousin Vinny” how Mona Lisa Vito explains, after researching legal texts, that the prosecutor is obliged to turn over his evidence and witness list? That’s the discovery process in a cinematic nutshell.

Discovery is the process in which each side receives and reviews its adversary’s legal claims and defenses.

Each side exchanges interrogatories — lists of questions — and requests documents, which the other is obliged to honor, or face contempt charges. Generally, each side will take depositions — that is, interviews that are on the record and under oath — of all relevant witnesses. Witnesses can have legal representatives join and counsel them during their depositions.

The process can seem to drag out, sometimes stretching from six months to a year, depending on the court’s schedule and the case’s complexity.

Step 3: Mediation

Most American adults are familiar with the phrase “out-of-court settlement.” Colin Kapernick, the controversial former National Football League quarterback, grabbed huge headlines for his non-court settlement with the NFL in February of 2019. Because jury trials are expensive and time-consuming and their outcomes unpredictable, attorneys and litigants often attempt to avoid hurly-burly courtroom showdowns.

Sometimes the lawyers themselves can simply settle a case by negotiation. When this fails, they attempt mediation, a process in which both clients and lawyers go before a neutral arbitrator in an attempt to reach an agreement. The mediator puts the two sides in separate rooms and walks back-and-forth between the two until he gets both sides to reach an agreement.

Step 4: Trial

When mediation fails, the case is scheduled for trial. This doesn’t necessarily mean it will go to trial; cases often are settled on the morning a trial is set to begin.

There is no set time for the length of a personal-injury trial. Some last only a day. Others stretch out for weeks, even months.

Trials also get postponed, sometimes for seemingly irrelevant causes.

Ultimately, assuming no settlement is achieved, the trial is held, the opposing cases presented, the stories told and the legal issues argued. When each side has rested its case and delivered final arguments, the judge will explain the applicable laws to the jurors and charge the panel to decide the outcome, and to award damages, if any.

Sometimes, judges will allow a personal-injury case to be bifurcated, or split into halves. First, a jury will decide whether the defendant is liable for the plaintiff’s injuries, and to what degree. Only if they rule against the defendant will the jury hear the arguments about damages, which tend to be more emotional.

Step 5: Appeal

No matter who prevails at the trial-court level, the losing side is almost certain to appeal. At appeal, the loser will not argue the merits of the case — appellate judges rarely overturn what are known as “juror questions” — but instead will point out errors it claims were made by the trial court judge.

Conceivably, appeals can linger for years, pushing expenses for both sides ever higher; meanwhile, the two sides can continue to negotiate a settlement.

Is it all worth it, or should an injured, or sickened, employee accept the workers compensation benefits and move on with life?

That’s a decision for the worker, the worker’s family, and an experienced attorney.

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About the author

Tom Jackson won dozens of national awards as a columnist for newspapers in Washington, D.C., Sacramento and Tampa. His writing has spread from business to politics to sports with an emphasis on community issues. Tom splits his time between Tampa and Cashiers, N.C. with his wife of 40 years, a college-age son and a yappy Shetland sheepdog named Spencer. Tom can be reached at [email protected].