When Can an Injured Worker Sue their Employer?

Can I sue my boss or employer?

This is often one of the first questions I get asked by frustrated and angry clients who have been unfairly denied workers’ compensation benefits after suffering a serious injury at work.

Generally speaking, when workers are hurt on the job in the state of Georgia, they are covered by workers’ compensation, which is a “no-fault” system. While this means they are entitled to compensation even if they are partially or fully responsible for their own injury, it also means they generally aren’t able to sue their employer.

However, in some cases, you may feel entitled to additional compensation outside of what workers’ compensation provides—or perhaps your employer acted “grossly negligent” which ultimately led to your injury.

In most cases, you can’t sue your employer if you are already covered under Georgia’s workers’ compensation system. This is because Georgia law requires that most businesses carry workers’ compensation insurance for their employees. This insurance provides financial benefits for medical expenses, lost wages and rehabilitation costs for employees who are injured at work. Workers’ comp may also cover other expenses, such as travel to get to and from doctors.

You are required to use the workers’ compensation system if your employer offers it and you are hurt on the job. While this may sound restrictive, it also means that no matter whose fault the injury was, even if it was your own, you can recover under workers’ comp law.

This is what has been referred to as “The Great Compromise” of workers’ compensation.

Of course, there are always exceptions to any rule, and there are unique instances where you may be able to sue your employer outside of workers’ compensation if you were injured at work.

When to file a lawsuit against (sue) your employer

In the following scenarios, it might be possible to sue your employer, depending on the circumstances. It’s important to talk to a knowledgeable attorney if you believe that one of these situations may apply to you:

1. Your employer doesn’t have insurance

Georgia law requires that most employers must carry workers’ comp insurance. This is mandatory for businesses with 3 or more employees, including part-time workers.

If your employer doesn’t have workers’ compensation insurance as is legally required, you may be permitted to sue them. In this situation, you will want to contact a lawyer immediately in order to file the right paperwork for the lawsuit.

In most cases, this will end with a settlement offer, but your employer will also likely face fines and other penalties.

2. You file a personal injury lawsuit for a negligent employer

If you qualify for and accept workers’ compensation, then you aren’t allowed to sue your employer—even if the accident that led to your injury was caused by their negligence.

However, if you have proof that your employer was “grossly negligent” and you decide not to file for workers’ compensation, you may be able to file a personal injury lawsuit against them.

You might decide to do this if, for instance, your employer forced you to use equipment that was known to be defective or malfunctioning, causing you to be injured. In a case like this, your attorney would have to prove that gross negligence occurred. Damage awards in these instances could also vary, depending on the nature of the negligence and your injuries.

3. Your family member was killed at work

Workers’ compensation death benefits do cover events in which a worker passes away due to a fatal work-related injury or illness. In these situations, dependents such as the deceased’s spouse or any children may qualify for compensation such as weekly income checks as well as funeral or burial expenses.

However, if you believe that your loved one’s death was caused by the employer’s negligence or some intentional act, you may be able to file for a wrongful death lawsuit. Similar to the personal injury lawsuit based on gross negligence, your attorney would have to prove this case and damage awards may vary.

4. A third party caused your injury

You are allowed to sue outside of workers’ compensation in cases where someone else contributed to your injury, such as a third party. In this case, you wouldn’t be suing your employer but rather the third party that caused the accident.

You also can’t file a lawsuit outside of workers’ comp if you were injured by a coworker—in other words, a coworker does not count as a third party.

For example, let’s say you were involved in a work-related auto accident, and a coworker was driving the vehicle and caused the accident. In this case, you are not at fault nor did you cause the accident. But workers’ compensation laws dictate that you are only entitled to workers’ compensation. You cannot sue your coworker who was driving.

However, if you were harmed by a third party who isn’t your employer or a fellow employee while you are working, then you may be able to file a worker’s comp claim and a personal injury lawsuit.

Make an informed decision

Unlike workers’ compensation claims, fault and negligence must be established in personal injury cases. For this reason, third-party lawsuits can be complicated, so an experienced attorney can help you determine who to file a lawsuit against and answer any questions you may have.

Because of Georgia’s various workers’ compensation laws, it can be difficult to know when you can sue your employer. In some cases, you may have to avoid any workers’ compensation benefits, while in others you might receive workers’ comp in addition to possible claims from a lawsuit.

For this reason, if you have been injured at work and believe that you may have a case for a lawsuit against your employer or a third party, you should consult with an experienced workers’ compensation attorney in Georgia.

About Ben Gerber

Georgia workers’ compensation attorney Ben Gerber, the co-founder of Gerber & Holder Workers’ Compensation Attorneys, exclusively represents injured workers in Atlanta, Athens and throughout the state. He uses his deep knowledge of employment law and extensive legal experience to help Georgia’s injured workers get the maximum compensation they’re owed under state laws.