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Can You Sue Your Employer Instead of Going Through Workers’ Comp?

If you are injured, it is natural to desire compensation from the responsible party. If your injury happened while you were working, then the appropriate way to receive compensation is through workers’ compensation. You may be wondering if you have the option to file a lawsuit against your employer or co-worker as an alternative to worker’s comp if one of these people was the cause of your injury. This guide will answer this question.

Filing a Lawsuit

If your injury qualifies for workers’ comp, then you are required to go through workers’ comp for compensation. Outside of some very unusual circumstances, you are not allowed to file a lawsuit against anyone for a work-related injury. In fact, it is usually impossible to use your insurance policy to pay for the medical bills. When the cause of the injury is discovered, most medical providers refuse to accept payment through an insurance policy for fear of facing legal consequences themselves.

Exceptions to the Rule

There are a few situations where a lawsuit may be appropriate for a work-related injury.

  • The injury was caused maliciously – If a co-worker or employer intentionally injured you, then workers’ comp is not the appropriate action. You still will not be filing a civil lawsuit, however. Instead, you should press criminal charges.
  • A workers’ comp claim was not filed – If you were injured while working, but your employer forgot or refused to file a workers’ comp claim, then you may be allowed to file a lawsuit. Alternatively, you may be able to receive the compensation you are owed by reporting your employer to the workers’ comp agency for your state. The appropriate action will vary from one state to another. You should know, however, that filing a workers’ comp claim is a legal duty all employers have.
  • The injury occurred while not working – Only injuries that occurred while “on the clock” are eligible for workers’ comp. If your injury is not eligible for any reason, then filing a lawsuit becomes a viable option. Unpaid volunteers, injuries during breaks, and injuries resulting from non-work-related activities are not covered.
  • The injury was caused by a third party – If the injury was the result of actions taken by someone unrelated to your work, then you are allowed to file a lawsuit against that individual. Workers’ comp does not apply in this kind of situation.

Speaking with a New York work related injury lawyer can help you learn when you should file a lawsuit and when you should file a workers’ comp claim.


Thanks to Polsky, Shouldice & Rosen, P.C. for their insight into workers compensation and suing your employer.