Workers’ Compensation Guide: When It’s Not The Remedy

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When you are injured on the job, your normal instinct may be to apply for workers’ compensation. However, sometimes that is not the appropriate remedy. Occasionally, the fault may lay with a third party, and thus workers’ compensation would not cover your injuries. There are also occasions in which you are able to sue your employer outside of the workers’ compensation system. Knowing your rights is important, as the statute of limitations on certain injuries will elapse very quickly.

Third-Party Claims

The most common injury sustained on the job for which the employer is not liable arises from third-party claims. This happens when an employee is injured in the performance of his or her job by a third party – that is, someone who is not a co-worker or affiliated with the employer. For example, imagine that you are a computer technician driving to a sales call, and your car is struck by another car. In this situation you are engaged in performing your work duties, but your employer did not cause your injury in any way. You may sue the driver who hit you under a third-party claim.

South Carolina law states that depending on the situation, an injured employee may collect workers’ compensation and bring suit against a third party if injured while in the performance of their duties. However, the law makes clear that this right only applies if action against the third party is begun less than one year after your insurance carrier has either paid your claim or paid out an award given by an appropriate court. If you have not pursued this right, then the right to sue passes to your insurance carrier, who can pursue the claim entirely on their own. The law provides that your insurance carrier, if the claim is assigned to them, may pursue the matter with the third party until the entire amount owed is repaid.

Third party claims can sometimes offer more benefits than workers’ compensation, and, as such, they are sometimes brought on a less than solid foundation, hoping to get lucky. It is emphatically not in a client’s best interest to bring a shaky claim to court; the judge will likely throw it out with prejudice.

Intentional or Egregious Employer Conduct

In rare situations, an employer will commit an egregiously negligent, malicious or intentional act. The case of Peay v. U.S. Silica Co., 313 S.C. 91 (1993) states clearly that “it is well settled that a common law cause of action is not barred by section 42-1-540 [the section of South Carolina law banning individual suits by employees against an employer] if the employer acted with a deliberate or specific intent to injure the employee.” Intentional conduct by an employer serves as an exception to the exclusive remedy provision. In other words, the law states that workers’ compensation is the appropriate remedy for accidental injuries, to the exclusion of all else – hence the “exclusive remedy” language. However, if an employer intentionally or with wanton recklessness injures an employee, the injury is not an accident.

Know Your Rights Before You Sue

If you bring suit and it has no merit, it can have long-term consequences. An attorney can help clarify when a suit is appropriate and when workers’ compensation is the best choice for you to be made whole. The personal injury attorneys at Callihan & Syracuse have a long history in this area of law, and we will put our knowledge to work for you. Contact our North Charleston office today for an initial consultation.