In New Jersey you generally can't sue your employer for a work injury, because workers' compensation is the exclusive remedy against the employer. But if someone else caused the injury, such as a negligent driver, an equipment manufacturer, a property owner, or another contractor on a job site, you may bring a separate third-party lawsuit against them while your comp case continues. That lawsuit can recover damages comp never pays, including pain and suffering, and the comp carrier is generally entitled to be repaid from it under N.J.S.A. 34:15-40.
When can you sue someone other than your employer?
The question is whether someone outside your employment relationship was at fault. Common examples:
- Vehicle crashes. A driver who hits you while you're driving for work, making deliveries, or working in a roadway.
- Defective equipment. A machine without a proper guard, a scaffold that fails, a tool with a design or manufacturing defect.
- Unsafe property. A hazard at a customer's premises or another company's facility where you were sent to work.
- Construction sites. A general contractor or another trade whose negligence caused the accident.
Some people can't be sued. Fellow employees generally share the employer's protection. If you work through a staffing agency, the company where you were placed may also be treated as your employer for these purposes. Those questions depend on the facts.
If the crash involved a car, keep in mind that New Jersey auto insurance rules add their own layer. Workers' comp generally pays first for a work-related crash.
What can a third-party claim recover that comp doesn't?
Workers' compensation pays medical bills, part of your lost wages, and permanency by formula. A third-party claim is an ordinary personal injury case, so it can include:
- pain and suffering, and loss of enjoyment of life;
- full lost wages and lost earning capacity, not just the comp rate;
- a spouse's claim for loss of companionship and services.
You don't have to choose. The comp claim and the third-party claim proceed side by side.
How does the workers' comp lien work?
Because the carrier has paid benefits for an injury someone else caused, N.J.S.A. 34:15-40 gives it a lien on your third-party recovery. In general terms:
- The carrier is repaid for the benefits it has paid, out of the recovery.
- The lien is reduced to reflect a share of the legal fees and costs of obtaining the recovery, since your lawsuit is what produced the money.
- The recovery can act as a credit against future comp benefits for the same injury.
- The carrier must be notified of the third-party claim, and its lien has to be dealt with in any settlement.
If an injured worker doesn't pursue the third party, the statute allows the employer or carrier, in some circumstances, to bring the claim itself.
The lien is a major reason to coordinate the two cases. Decisions in one, especially how and when the comp case settles, affect what you take home from the other.
Can you ever sue your employer directly?
Only in the narrow case of an "intentional wrong." Under Millison v. E.I. du Pont de Nemours and Laidlow v. Hariton Machinery, the employer must have known its conduct was substantially certain to cause injury or death, and the circumstances must be more than an ordinary fact of industrial life. Carelessness, even gross carelessness, doesn't meet that standard. In Laidlow, an employer that disabled a machine's safety guard and put it back only when inspectors visited was found to have engaged in conduct that could meet the standard.
Talking to a lawyer about your situation
Third-party cases have their own deadlines, generally two years for a personal injury lawsuit and as little as 90 days for a notice of claim against a public entity. See workers' comp deadlines. Evidence, like a damaged machine or a vehicle, can disappear quickly, so it's worth asking early whether someone besides your employer was responsible. Our step-by-step guide covers the comp side of the case, and more about how the firm handles these matters is on the workers' compensation overview.
Gray Law Group is in Jefferson, Morris County, and represents injured workers in Morris, Sussex, Warren and Passaic counties and throughout northern New Jersey. Bring the accident report and any information about who else was involved to a consultation.
Frequently asked questions
Does the comp carrier get paid back if I recover money from a third party?
Generally, yes. Under N.J.S.A. 34:15-40, the carrier has a lien on the recovery for benefits it paid, reduced to reflect a share of the legal fees and costs of obtaining it. The recovery can also serve as a credit against future comp benefits.
Can I sue a coworker who caused my injury?
Generally, no. New Jersey extends the same protection to fellow employees that it gives the employer, so a careless coworker usually can't be sued. The narrow exception is an intentional wrong.
Do I have to choose between workers' comp and a lawsuit?
No. You can pursue comp benefits from your employer's carrier and a third-party claim against someone else at the same time. The two cases are coordinated through the carrier's lien.
Can my spouse bring a claim too?
In a third-party lawsuit, a spouse may have a claim for loss of companionship and services, often called a per quod claim. Workers' compensation has no equivalent benefit.
This website is for informational purposes only and does not constitute legal advice. Prior results do not guarantee a similar outcome.