Although workers’ compensation in Wisconsin is considered the exclusive remedy that injured workers have against employers and negligent colleagues per Wis. Stat. 102.03(2), there are many situations wherein a third-party negligence bears some – or all – blame for an injury or illness giving rise to a workers’ compensation claim. These are referred to as “Third-Party Liability” claims, and they are specifically outlined in Wis. Stat. § 102.29.
It’s important to discuss with a Wisconsin workers’ compensation lawyer because you could be entitled to an additional payout, but also because whatever you receive could impact your workers’ compensation benefits. Your insurer or medical provider may have rights to a “lien” on certain recoveries you benefits obtained. It’s necessary to be prepared for this possibility, and make sure you aren’t signing a settlement that will come back to bite you later.
Do not miss out on an opportunity to obtain additional money to help you recover. The attorneys at Lein Law Offices in Wisconsin can evaluate your case and advise you whether you have a third-party claim.
There are a few primary differences between third-party liability lawsuits and workers’ compensation claims:
- In third-party liability, plaintiff (injured worker/ survivor) must prove negligence, whereas workers’ compensation is a no-fault system. Under Wisconsin’s contributory negligence statute, Wis. Stat. § 895.045, if the injured person is deemed 51 percent or more negligent in the incident resulting in injury, the victim may be barred from a claim. One who is 50 percent or less liable can still collect damages, but they will be proportionately reduced by his/ her own degree of fault.
- Deadlines for the two claims vary. In general, workers need to inform an employer right away of a work injury (within 30 days, up to two years). Claims must be filed within six years. Personal injury claims must be filed within three years, per Wis. Stat. § 893.54, while wrongful death claims must be filed within two years or three years of the date of death, depending on the cause.
- While workers’ compensation benefits entitle ailing employees/ survivors of those killed in work accidents to receipt of medical expenses, a portion of lost wages and death benefits, they cannot pursue damages like pain and suffering, mental/ emotional anguish and loss of consortium (owed to spouses, children and parents for loss of companionship). Those who pursue third-party liability may furthermore be entitled to full wage loss benefits and other special damages workers’ compensation doesn’t offer.
Both benefits can be essential to helping an employee and family stay afloat financially in such a difficult time. It’s important to have a dedicated Wisconsin legal team who can advise you of your rights.
Because health care insurers, workers’ compensation insurers and medical providers may have grounds to assert a lien on third-party liability settlements or damage awards, there is a formulaic breakdown of damages distribution in Wis. Stat. § 102.29. Note that spouse/ dependent damage awards payable under civil tort claims aren’t subject to liens by workers’ compensation insurer.
Third-party defendants are individuals or companies other than the employer or co-worker who may be legally responsible for the employee’s injuries – just as they would if the worker wasn’t acting in the course and scope of employment at the time of the injury.
Examples of third-party liability defendants include (but are not limited to):
- A negligent driver who struck you while you were traveling for work;
- A vendor who provided alcohol to a minor who caused a drunk driving accident that injured you in the course and scope of employment (dram shop law);
- Uninsured/ underinsured motorist (UM/UIM) auto insurer of individual employee if negligent driver’s limits do not fully cover damages;
- The manufacturer of a product, tool or machines that malfunctioned, even when used as intended or as could be anticipated, resulting in serious injury to a worker;
- A property owner or landlord where work was being performed (premises liability);
- A construction general contractor or other contractor (if not one’s employer; liability potential may be outlined in contract between employer and general contractor);
- An individual who attacked or battered a worker on-the-job (known as an intentional tort);
- Health care provider who committed medical negligence in treatment for a work injury/ ailment that exacerbated the injury.
Workers’ compensation insurers have the right to participate in third-party settlement negotiations or litigation – even when there isn’t enough liability insurance to make whole either the employee or the insurer. Both employee and workers’ compensation insurer may be entitled to interest when recovering damages from a third party.