Are There Scenarios When You Should Waive Your Workers’ Comp Claim Rights? NO!

Are there scenarios when you should waive your workers’ comp claim rights?

Workplace injuries are an unfortunately common experience, especially in industries where employees have to work with dangerous equipment, perform repetitive motions or tasks, or work in potentially dangerous settings. In many cases of an employee injury, workers’ compensation is the obvious choice. It does not require the employee to prove fault and an employee’s own negligence does not diminish their ability to get compensation.

There are some situations, however, solely when you are in a work-related automobile or vehicle accident in which your best interests may be served FIRST by pursuing benefits through your or your employer’s personal injury protection (PIP) benefits (usually up to just $10,000) rather than immediately through workers’ compensation insurance. However, you should advise your employer and the insurance company that you are NOT rejecting workers compensation and NOT refusing to report the accident and injuries, but, that you will first proceed through PIP.  You will then have the right after the exhaustion of the PIP benefits to seek treatment from the workers’ compensation carrier.

We believe however, in any accident in which a third party is at fault and caused your injuries and against WHOM you may have a civil suit for negligence, that you FIRST and FOREMOST proceed through workers compensation. All kinds of problems will develop if you treat outside of workers’ compensation, including but not limited to: no payments for disability wages; having to change physicians after the PIP is exhausted causing disruption and differing medical opinions; potential for the Workers’ Compensation Insurance Carrier to deny things if they say are unrelated, including if you go through surgeries. We believe you should always proceed with workers compensation benefits in any accident in which a third party may be liable, as the benefits are tax free, there’s no co-payment and after the $10,000 PIP is exhausted like in auto cases, you are personally liable for the medical treatment and costs, usually which are tied to Letters of Protection.

  1. Negligence of a Third Party

Your ability to file a personal injury case against your own employer is often limited by the cause of your injury, and must amount to a situation where the Employer had “substantial certainty” that someone would be injured in the same manner as you were. However, this is not the case if your injury was caused by a third party. If a coworker or manager is responsible for an incident, a lawsuit may be inadvisable and is in your best interests to consider. Pursuing workers compensation does not interfere or negate your right to pursue a claim for injuries against a third party responsible, even a landowner, or a subcontractor etc.

On the other hand, you might choose to file a personal injury case if a contractor or customer causes you bodily harm. It’s important to discuss this option with an attorney, since it can be difficult to determine who is at fault for an incident. Most importantly, there are significant strategies attorneys like Feldman Legal Group employ to maximize recovery for a client who is involved in a work-related accident and who has a civil claim against a 3rd party for causing the injuries. This is why it’s in your best interests to seek out an attorney and law firm like Feldman Legal Group that handles both workers compensation claims and Personal Injury claims.

  1. Intentional Misconduct on the Part of Your Employer

In most cases, a workplace inquiry is the result of an employee’s own negligence, a coworker’s unintentional mistake, or an equipment malfunction. In these cases, workers’ compensation is often the most suitable and even only legal option to pursue for your injuries. In such situations, the Employer and its employees are generally is IMMUNE from civil suits. This immunity may however not apply to other subcontractors, vendors, and materials or equipment providers on a construction site. If an employer intentionally or maliciously causes you harm, you may be able to seek greater damages with a personal injury suit. This includes situations where an employer does something that can obviously lead to serious harm or death. Consider speaking with an attorney to find out if there’s substantial evidence to demonstrate intentional misconduct. The standard to consider is whether the Employer placed you in a position of substantial certainty of injury.

  1. Defective Product or Toxic Substance

If an injury can be attributed to a defective product or exposure to a toxic substance, you could be limiting yourself if you solely pursue workers’ compensation instead of simultaneously looking into other legal avenues. When a toxic substance is responsible for bodily harm, the victim may benefit from a toxic tort lawsuit against the manufacturer, or actions against the building owner or property manager, or even a maintenance company. On a similar note, you may seek additional compensation if you can trace your injury to a defective product. When a product is involved in a victim’s injury, a products liability action can hold the manufacturer responsible.

No matter which option is relevant for your workplace injury, discuss the specifics of your case with a lawyer, and someone who handles both personal injury and workers compensation if possible. An attorney with experience in both workers’ compensation and personal injury can help you decide how to use both legal claims to increase the chances of making you whole after an injury and will know how to strategize for you in maximizing the recovery against all parties, insurance companies, and persons responsible for your injuries. The attorney can also help negotiate and limit liens, and even in some cases obtain waivers of liens.

Ready to take the next step? At Feldman Legal Group, we’re ready to defend your rights and help you get the compensation you deserve. Contact our workers’ compensation attorney today to schedule a free consultation.


Tampa Lawyer Mitch Feldman

Attorney Mitch Feldman

Attorney Mitchell Feldman, Esq. specializes in both personal injury and employment law. He is rated AV Preeminent by Martindale-Hubbell and has an Avvo rating of 10. A member of the State Bar in both Florida and Georgia, he is also admitted to practice in Federal District Courts. With several multi-million dollar victories for his clients, Mitchell Feldman has a record of success. [ Attorney Bio ]