Workers' compensation pays your medical bills and part of your wages, but nothing for pain and suffering. And in most cases you can't sue your employer. Many serious workplace injuries, though, are caused by someone other than the employer. When that happens, New Jersey law lets you bring a separate personal injury lawsuit against that third party, while still collecting workers' comp. For a badly injured worker, this second claim is often where most of the compensation comes from.
How the two claims fit together
| Workers' comp | Third-party lawsuit | |
|---|---|---|
| Who pays | Your employer's comp insurer | The negligent third party and its insurer |
| Fault required? | No | Yes, negligence must be proven |
| Pain and suffering | Not available | Available |
| Lost wages | About 70%, capped | Full past and future losses |
| Where it's decided | Division of Workers' Compensation, by a judge | Superior Court, by a jury |
| Deadline | Generally 2 years (N.J.S.A. 34:15-51) | Generally 2 years (N.J.S.A. 2A:14-2) |
The right to bring both is preserved by N.J.S.A. 34:15-40.
Who can be a third party?
On construction sites
Construction projects usually involve a general contractor, many subcontractors, a property owner, and equipment suppliers. If you work for one subcontractor and you're hurt by another contractor's unsafe work, missing fall protection, or a poorly maintained scaffold, those other companies can be held responsible. Our $1.1 million construction-zone recovery was built on proving another company's negligence, including negligent hiring.
Defective machinery and equipment
If a machine had no guard, a defective safety switch, or inadequate warnings, its manufacturer or distributor may be liable under New Jersey's Products Liability Act. That's true even when your employer can't be sued. This is common in amputation and crush injuries. More on product liability.
Drivers
Delivery drivers, sales representatives, rideshare drivers, and anyone else hurt in a crash while working can bring a claim against the at-fault driver, along with workers' comp where it applies. Your own employer's auto policy may also provide underinsured motorist coverage.
Property owners
If you're hurt at a location your employer doesn't control, such as a customer's home, a store you're delivering to, or a building where you're doing repairs, the owner may be responsible for a dangerous condition there. See premises liability.
Security and staffing companies
Workers placed by a staffing agency, and workers assaulted where security was inadequate, may have claims against companies other than the one that technically employs them. These cases are very fact-specific.
The workers' comp lien
When you recover from a third party, your employer's comp carrier has a lien. It's entitled to be repaid part of what it paid you, and any excess recovery is credited against future comp benefits (N.J.S.A. 34:15-40). The repayment is reduced by the carrier's share of the legal expenses and fees. Liens can sometimes be negotiated as part of the overall settlement, and how the lien is handled can change your net recovery significantly.
What about suing my own employer?
Generally, you can't, because workers' comp is the exclusive remedy against your employer (N.J.S.A. 34:15-8). The exception is an intentional wrong: conduct the employer knew was substantially certain to cause injury, such as deliberately disabling safety equipment and then hiding it from inspectors (Laidlow v. Hariton Machinery Co., 170 N.J. 602 (2002)). These claims are hard to win but are real in the right case.
If you were hurt in New York
New York has a powerful rule that New Jersey doesn't. Under New York Labor Law § 240(1), known as the "Scaffold Law," property owners and general contractors can be held strictly liable for many falls from height and falling-object injuries on construction sites when proper safety devices weren't provided. If your construction injury happened in New York, the third-party case may be much stronger than you'd expect.
What to do now
- Report the injury to your employer and open your workers' comp claim.
- Write down every company that was on site or involved with the equipment or vehicle.
- Photograph the scene, the equipment, and any missing guards or safety devices, if you can do it safely.
- Don't give statements to other companies' insurers.
- Talk to a lawyer who handles both comp and personal injury, so the two claims, and the lien, are coordinated.
For the basics of the comp side, read how New Jersey workers' compensation works.