Adler Giersch PS

Many people are not aware those injured while working may be able to pursue a more complete recovery outside the limitations imposed by the Washington Workman's Compensation system. Injured workers may be able to pursue a third party claim for their traumatic injuries even when they were injured in the workplace.

The Workman's Compensation Act RCW 51.40.010 et seq. established exclusive remedy provisions for claims for lost income and medical care by workers injured on the job, while abolishing other types of possible compensation including general damages or pain and suffering. Recovery under the system is limited to economic or special damages only including a reduced potion of past and future income loss, cost of retraining if applicable, actual treatment costs, and a lump sum award for any permanent partial impairment. Workman's Compensation does not pay dollar for dollar of lost income, damages for the loss of quality of life (general damages) or provide full compensation for permanent injury and future care which will be needed because of the traumatic injury.

There are two key exceptions to this legislative framework which allow an injured worker to recover compensation for their injuries and damages outside the statutory remedies in certain situations.

The first such scenario is when the injury occurs because of the negligent, reckless, or intentional actions of another person who is not a fellow employee or under the direct control and supervision of the same employer. This type of claim most commonly arises from automobile collisions which occur while the injured person is on the job. A classic example is the injured person who is rear-ended in the course of their employment who may still make a claim against the driver whose negligence caused the collision which resulted in their injuries. In that situations the injured party has two claims they may pursue to obtain recovery. L&I is primarily responsible for paying the treatment bills as well as past and/or ongoing income loss as the care and income loss accrue. The injured worker also has a second claim based in negligence against the at fault driver for pain and suffering, as well as the remainder of the income loss not paid by L&I.

Work related negligence claims can also arise on construction sites, in industrial and manufacturing environments, or even in an office setting. The third party claim in a work setting can be against the manufacturer of a defectively or dangerously designed product used when doing the job, or from work done by other sub-contractors brought in for special projects. For example, a plumber trips over an electrician's electrical cord and falls down a fight of stairs because of the unsafe placement of the cord. In that scenario, the general contractor, as well as the electrical subcontractor, can be held liable in damages for failing to: provide a reasonably safe work site; to warn of hazards inherent in the site and work; to hire careful employees; to coordinate job safety; and to supervise compliance and safety specifications. The application of the workman's compensation statutes in RCW 51.40 et al would only preclude the injured plumber from bringing a negligence claim against his employer.

The second type of exception situation in which the injured employee may bring a third party claim directly against their own employer is very narrow and available in highly limited circumstances. Under RCW 51.24.020, as interpreted by the Washington Supreme Court in Birklid v. The Boeing Company in 1998, the injured worker has a viable third party claim outside of the workman's compensation system if there is sufficient evidence the injury resulted from the wilful disregard by the employer who knew injury was occurring or would occur, and ignored the potential of, or actual harm to the worker. Such claims made directly against the employer must be pursued through well developed facts and a sophisticated legal argument based in the courts interpretation of the law, and successful recoveries under this exception are rare.

Bringing third party claims in the context of on the job injuries requires effective investigation and factual development to bring to a successful conclusion. The responsible third party may be difficult to identify and locate and critical evidence must be promptly preserved. These factors warrant an early referral for consultation to capable attorneys. Having an experienced personal injury attorney explore the potential for a recovery outside the system can be critically important to obtaining full and fair compensation for the injured worker. If you are treating a patient injured in a workplace incident or while working, they may be entitled to additional benefits outside of the Worker's Compensation Act. Simply have them give us a call. Consultations are free through our offices in Seattle, Bellevue, Everett and Kent.