As a personal injury lawyer in Cleveland, Ohio, we are frequently asked if a civil lawsuit can be filed on behalf of a worker who is injured in the course and scope of their employment. Generally, when a worker is injured on the job, they are limited to benefits available through the Ohio Workers’ Compensation system. These benefits are often inadequate and severely limited. There are two ways in which an injured worker can file a personal injury lawsuit and recover compensation above and beyond what is available through the workers’ compensation system.
The first way in which a worker can recover compensation outside of the workers’ compensation system is when his or her injury results from the negligent conduct of a third party. These cases, called “third party claims,” arise when the worker is injured by someone other than their boss or co-workers. Let’s discuss some common examples. On a construction site, there is typically a general contractor and multiple subcontractors. If your injuries arise out of the negligent conduct of the general contractor or a subcontractor other than your own employer, you can bring a third party claim.
Another common example of a third party claim arises out of motor vehicle accidents. If, during the course of your employment, while operating or a passenger in a car or truck that is struck by another vehicle, you can recover for injuries sustained in the car or truck accident, assuming the collision is the fault of the other driver. These types of motor vehicle claims raise a number of complicated insurance issues. The question of whose insurance applies can be complex and requires the skill of an experienced personal injury lawyer to resolve it. Often, multiple coverages apply when there are catastrophic injuries.
Likewise, an injured worker in Ohio can recover compensation when they are injured on the job by defective equipment. These cases are called product liability cases. Product liability claims can be brought against manufacturers or suppliers of defective machines or equipment. Machines or equipment are considered defective if they are manufactured in an unsafe condition and fail or lack proper warnings or operational instructions.
The second type of case that may permit an injured worker in Ohio to recover personal injury compensation is the so-called “intentional tort.” Intentional torts generally require an employer to knowingly and maliciously inflict harm on their employee. This rarely occurs. However, Ohio law also recognizes that an employer has effectively committed an intentional tort when the employer consciously disregards the safety of the employee. Based on recent legislation, conscious disregard can be proven only when an employer removes a guard from a known hazard thereby subjecting the employee to harm.
In addition to the foregoing examples, there can also be a question of whether the injured worker is an employee or an independent contractor. If a worker is an independent contractor, then the workers compensation bar against a personal injury lawsuit does not apply. Likewise, questions may arise as to whether an employee was injured in the course and scope of their employment or outside of the employer/employee relationship. For example, if an employee is off-site, traveling, or entering/exiting the employer’s place of business, the workers’ comp bar may not apply.
It should be noted that in those situations where an injured worker has both a workers’ compensation claim and an intentional tort or third party claim, and recovers compensation through both claims, the Bureau of Workers’ Compensation is entitled to reimbursement for expenses that they have paid on the employee’s behalf. This is called “subrogation.” Your personal injury attorney must advise the Bureau about the personal injury claim and reimburse the Bureau for payments it has made, less the costs of recovery. Costs of recovery include legal fees and case expenses.
Our personal injury law firm limits its practice to catastrophic injuries, including traumatic brain injury, amputations, burns, paralysis, major orthopedic injuries, and other disability. We have successfully handled numerous cases arising out of catastrophic workplace injuries, including electrocutions, explosions, trucking accidents and falls on construction sites. If you have any questions about whether you have a personal injury claim arising out of a workplace injury, please feel free to call the offices of Mishkind Kulwicki Law for advice. We frequently work with workers compensation attorneys to assist their clients who may have suffered an injury as a result of a third party, a defective product or intentional endangerment by an employer.