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Personal Injury Workers’ Compensation and Third-Party Cases: What You Should Know

By Keith Stachowiak on February 19, 2021 // Leave a Comment

Two construction workers, one helping the other walk off the worksite because of a workers comp personal injury onthe jobWisconsin was one of the earliest adopters of workers’ compensation laws dating back to 1911. Workers’ compensation is like a no-fault system, meaning an injured worker can be compensated if the injury “arises out of” employment. Whether the employer did anything wrong or if the employer was negligent, it does not typically matter. The worker in either case receives benefits according to a series of schedules that depend on the earnings of the worker, the body part injured, and how badly injured that body part is.

How Is Workers’ Compensation Amount Determined?

There is an important number known as an average weekly wage calculated on 52 weeks of earnings, if possible. That average weekly wage is used in a formula to determine how much you are paid while off work and for any permanent disability. The department has a schedule of losses based on body parts. If you lose a leg at the knee, for example, you are entitled to 425 weeks of compensation, that is calculated, in part, on the average weekly wage. If a doctor awards a 10% disability for a knee injury, that 10% would be compared to the 425-week amputation benefit for an award of 42.5 weeks of compensation.

The compensation system is primarily for economic damages, with pain and suffering being the one major element missing from workers’ compensation damages. The economic damages that are awarded under compensation are unquestionably low. These scheduled injuries do not account for whether the individual is a very young worker, who will be affected for many years, or a worker nearing retirement. The actual losses for the same injury to a young worker would be many times that for an older worker, but it makes little difference under workers’ compensation laws.

There are also claims that are not on the schedule, such as injuries to the spine, head, or lungs. The benefits are better than those for scheduled injuries, but fall far short of awards given for the same injuries in a third-party case.

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Third-Party Workers’ Compensation Cases

If a worker is injured on the job, the only remedy against the employer is workers’ compensation. If the injury is due to the fault of a “third party,” a regular personal injury case can often be pursued against that third party.

Third-party cases can be fairly simple or extremely complex.

On the simple side, if you drive for work and are hit by a driver who ran a red light, that is handled very similarly to a normal car accident case. Claims are made for medical expenses, lost wages, and pain and suffering. If the workers’ compensation insurer has paid benefits for wage loss or medical expenses, it is reimbursed from the proceeds of the third-party car accident case.

More complex cases involve products that cause injury at work. In these instances, a claim can be brought against the product manufacturer or the company hired to maintain it. In these cases, in the event that the employer is negligent in some fashion, such as failing to have a machine properly repaired, a jury may be asked to compare the fault of the manufacturer, employer, and injured employee. In order for the employee to recover from the manufacturer, the manufacturer must be more at fault than the employee. If the employee is partially to blame, but is less to blame than the manufacturer, the employees’ award is reduced by the amount of the employees’ blame. If the employee is more to blame than the manufacturer, the employer receives no award.

Construction & Factory Workers’ Comp Cases

Third-party workers’ compensation cases can also arise on construction sites. While an injured employee cannot sue their employer, if a different contractor created an unsafe situation on a job site, a claim may be possible against that company. In these construction accident cases, sometimes it is necessary to show that the company acted negligently in some affirmative manner, rather than just failing to affirmatively take some steps toward safety. There are very complex rules governing contractor negligence on multi-employer worksites.
Construction worker grabbing his ankle in pain from an injury on the job
These third-party comp cases often involve highly skilled engineers and safety experts. They look to ANSI (American National Standards Institute) and ASTM (American Society for Testing and Materials) standards for assistance. These industry groups lay out the actions that manufacturers must take to make its products safe. These complex third-party cases can be complicated and expensive to bring to justice.

A frequent pattern that we encounter is when an employee is sent to some other workplace, such as a factory or foundry, to work on machinery or something in the plant. These can be dangerous areas, especially for someone not familiar with the way that facility operates. When a company brings in an outside person to do work or repair something in their facility, they need to take appropriate care to make sure that outside person is not injured. It can be held liable if they fail to do so.

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If you have a case you would like to speak to a Milwaukee personal injury lawyer about, please contact us to schedule a free consultation or fill out this case evaluation form and get an experienced team of lawyers working on your behalf.