An incredibly common question for an injured worker is whether they can sue their employer for a work injury. The short answer is "no." The workers' compensation system is the only way to receive compensation for the injuries suffered--the "exclusive remedy."
This inability to bring a personal injury or tort claim (meaning no pain and suffering damages) can be shocking to a severely injured worker. Even though there is no ability to "sue" an employer or co-worker, an injured worker has the right to bring a workers' compensation claim, which provides compensation for lost time benefits (temporary total disability), medical expenses, and permanent disabilities.
Employer's Intentional, Negligent, or Illegal Action
Despite the inability to "sue" in court, if a work injury results from an employer's intentional, reckless, or illegal act, there is a special rule in Wisconsin's worker's compensation system that states that the employer will be responsible for an additional 15 percent increase in compensation.
The employer must have done one of the following:
- Violated a safety order or statute
- Failed to use safety devices
- Disobeyed an established safety rule
The increase in compensation is capped at a maximum of $15,000.
What If the Worker Was At Fault?
Workers may be reluctant to file a workers' compensation claim if they feel the injury is due to their own fault. Sometimes they feel that the injury was due to their own violation of a safety rule or because of alcohol/drug use. In some states, this could bar a workers' compensation, recovery-but not in Wisconsin. An injury caused by the employee's failure to use a safety device or adhere to a safety rule could result in a 15% decrease in workers' compensation benefits, to a cap of $15,000, but the worker can still claim benefits. Therefore, even a worker was at fault, they still can present a workers' compensation claim.
Claims Against a Third Party
Despite being unable to sue your employer, there are circumstances where a worker has access to remedies outside of workers' compensation benefits. If a third party who is not the worker's employer could be responsible for the injury, the worker may be able to receive further compensation through a lawsuit. Third party claims are available for medical expenses, loss of wages, and pain and suffering.