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If you have a workers comp case and it has been accepted as work related can you also sue your employer for personal injury.

New York, NY |

I have a RSI workers comp based, can i also pursue a personal injury case against my employer for my injury my job caused based on negligence? It seems the Personal Injury case would be worth more for all my pain and suffering especially since i am restricted in my normal activities even though i am still working. Pls advise. If so would you be willing to speak to me about handling my PI case?

Attorney Answers 7


  1. Short answer is "no." A worker who is injured in the course and scope of his employment is entitled to worker's compensation benefits. As a general principle of law, those benefits are his EXCLUSIVE remedy with respect to his employer. The deal with worker's compensation is that all the employee has to prove is that he suffered injury in the course and scope of his employment. He no longer has to prove the employer's negligent breach of a duty, which injured workers had to do before the advent of worker's compensation. In exchange, the employer has to pay for the worker's compensation benefits, but gets IMMUNITY from suit. Which means, in the ordinary circumstance, employee can't sue employer.

    The worker's compensation bargain represents a big improvement over the previous state of affairs, where even the smallest bit of negligence barred an employee's recovery ("contributory negligence"), where the participation of a co-worker in the circumstances leading to the injury could bar the employee's recovery ("the fellow-servant rule"), and where the employee could be deemed to have assumed the risk that he would be injured ("assumption of the risk"). "Contributory negligence," "assumption of the risk," and "the fellow-servant rule" -- sometimes called "the unholy trio of the common law" -- made it almost impossible for employees to recover from their employers for work-related injuries. But the advent of worker's compensation laws changed all that. NOW, the worker's compensation bargain is that in exchange for the reduced burden of proof (now one only had to show injury sustained in the course and scope of employment), the injured worker gives up the right to sue the employer, and the employer, tagged with compulsory responsibility to provide worker's compensation benefits to injured workers, gets IMMUNITY from suit. All of which means, injured worker can't sue employer for pain and suffering, lost wages, negligence, or anything else arising out of a work-related injury.

    Not legal advice as I don't practice law in New York. It's just my two cents on the facts you describe in light of general principles of law. New York may depart significantly from the general rule, so if you need legal advice, please consult an New York-licensed lawyer for an in-person, sit-down legal consultation based on all the facts and circumstances.

    Good luck.


  2. In general, you can't sue your employer. However, if you were injured while performing construction work, you may have a possible third party claim against the owner of the premises or general contractor depending on how the injury occurred.

    New York Plaintiff's Personal Injury Attorney Serving NYC, Long Island, Westchester and the surrounding areas. The information provided herein is not, and is not intended to be, legal advice. The content herein is for information and educational purposes only, and is based on the limited information provided. Any information provided is not intended to, and does not, create any attorney/client relationship where none exists. For legal advice, please consult with an attorney. While this posting is made for informational purposes only for the AVVO community, to the extent one seeks to contact me based on the content herein, or that this may be viewed by some to be attorney advertising, please be advised of the following: *Attorney Advertising


  3. In NY, your exclusive remedy for on the job injuries is workers compensation unless you can show your employer intended to cause your injury or provided no comp coverage which is obviously not the case. As indicated by my colleague, you may have a claim outside of worker's comp if you can show someone other than your employer caused your injury.

    Disclaimer- The information you obtain at our web-site or through postings on such sites as this is not, nor is it intended to be, legal advice. You should consult an attorney for specific advice regarding your individual situation. Any response given here is not intended to create, nor does it create an ongoing duty to respond to questions. The response does not form an attorney-client relationship, nor is it intended to be relied upon as legal advice. The response given is based upon the limited facts provided by the person asking the question. To the extent additional or different facts exist, the response may change appropriately.


  4. As my colleagues have stated, you cannot typically sue your employer after already collecting workers' compensation benefits from it (through its insurance carrier). There are exceptions, such as when you have a "grave injury" caused by your employer's negligence, but RSI (repetitive strain injury) probably does not qualify. Grave injuries tend to be those that cause paraplegia and other substantial limitations.

    As someone who has been working with a pinched nerve currently and several other injuries over the years, I understand your frustration with the life changes that occur from a combination of aging and repetitive use. Yet I encourage you to look with gratitude at what you do have: a) the ability to work, b) the ability to understand enough of the law to pose a very thoughtful question here, and c) possibly options for employment with other employers who might make you happier. It seems as though what is bothering you most is your relationship with your employer. Perhaps you could speak to a supervisor or your human resources department about your concerns and create a better work environment for yourself. I recognize that can be a challenge, but you deserve to be content and respected (if not happy) at work. If you're still employed, you can assume that you do a satisfactory job. Perhaps your employer just needs a polite reminder that you do what you are asked, and you need to be acknowledged for your contributions. Don't be afraid to ask for what you want or to seek it elsewhere. :) Life is too short!

    My response is for general information only. It is not legal advice, and it does not create an attorney-client relationship. There is rarely a black-and-white rule or a "one size fits all" answer to a legal question. Please contact an attorney for specific legal advice regarding your matter so you can customize a solution to your needs and desires. :)


  5. Review case with an experienced personal injury attorney to evaluate third party action possibility. Suit against employer precluded by workmen's compensation with very rare exceptions.

    If this answer is helpful, then please mark the helpful button. If this is the best answer, then please indicate it. Thanks. For further information you should see an attorney and discuss the matter completely. If you are in the New York City area, then you can reach me during normal business hours at 718 329 9500 or www.mynewyorkcitylawyer.com.


  6. NO. It is possible you would have a claim against a third party depending on exactly how your injury occurred.


  7. Workers compensation is the remedy, unless there is a third party claim (not your employer)

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