Workers Comp Third Party Claims: What Injured Workers Need to Know

Bottom line: You can pursue workers’ comp and third-party claims at the same time. If someone outside your job contributed to what happened to you, you may be entitled to more than workers’ comp alone provides.

Getting hurt at work can turn your life upside-down. Finding out your workers’ comp check doesn’t cover everything you’ve lost can make it even worse.

What most injured workers don’t know is that a separate claim against whoever else is responsible for your injury can fill that gap. It’s called a third-party claim, and it can recover the financial losses that workers’ comp may not.

So what exactly is a third-party claim, and how do you know if it applies to your situation?

What Is a Third Party Claim and When Does it Apply?

When most people hear the word “claim,” they think of calling an insurance company. That’s part of it, but a claim can also mean a lawsuit filed in court. Either way, it’s a formal demand for compensation from someone who owes it to you.

A third-party claim is a demand directed at someone other than your employer. Your employer has workers’ comp insurance that covers some of your loss when you’re hurt on the job. But what about the equipment manufacturer whose machine failed? The property owner whose unsafe conditions caused your fall? The driver who hit you while you were making a delivery? None of them is your employer, but they may bear responsibility as well.

That’s what a third-party claim is for. It’s a personal injury case. If you can prove that someone else’s carelessness caused your work injury, you can receive compensation that goes beyond what workers’ comp provides.

Here are the most common situations where a third-party claim applies:

• Defective equipment or machinery. If a tool or machine failed and hurt you, the manufacturer or distributor may be liable.
• Motor vehicle accidents. If you were driving for work and another driver caused the crash, that driver can be held responsible.
• Unsafe premises. If you were working on someone else’s property and an unsafe condition caused your injury, the property owner may bear responsibility.
• Subcontractors and other workers. On job sites with multiple employers — construction sites especially — another company’s negligence can injure you, and that company can be held accountable.
• Toxic substances. If you were exposed to hazardous materials without adequate warnings, the manufacturer or supplier may be liable.

So what exactly do workers’ comp and third-party claims cover?

Workers Comp and Third Party Claims: What Each One Covers

Understanding the difference between these two paths is critical to recovering the money you need.

Workers’ compensation typically covers:

• Medical bills related to your injury
• A portion of your lost wages 
• Disability benefits if your injury results in lasting impairment
• Vocational rehabilitation in some states

Workers’ comp does not cover:

• Pain and suffering
• Emotional distress
• Full wage replacement
• All future lost earning capacity 

A third-party claim can recover all of the above. For workers dealing with serious injuries like broken bones, spinal damage, loss of a limb, or a long-term illness, that gap can represent hundreds of thousands of dollars.

And the good news is: you don’t have to choose between the two.

Can You File Both at the Same Time?

Yes — and in many cases, you should.

Pursuing workers’ comp and a third-party claim simultaneously is not only allowed; it’s often the right move for seriously injured workers. Workers’ comp gets money moving quickly for your medical bills and immediate wage replacement. A third-party claim pursues the fuller compensation you may be entitled to for everything workers’ comp doesn’t cover.

There is one important thing to understand. If you receive workers’ comp benefits and later recover money from a third-party lawsuit, your employer’s workers’ comp insurer has the legal right to be reimbursed for what they paid out on your behalf. This is standard practice and exists to prevent someone from being paid twice for the same expenses. For example, if workers’ comp paid $30,000 in medical bills and you later settle a third-party lawsuit for $150,000, the insurer will have a claim on a portion of that settlement.

An experienced attorney can negotiate that reimbursement amount and, in many cases, reduce it significantly so that you keep as much of your recovery as possible.

Steps to Take After a Workplace Injury Involving a Third Party

If you think someone other than your employer may be responsible for what happened to you, here’s what to do:

1. Get medical attention immediately. Your health comes first — and medical records are also critical evidence.
2. Report the injury to your employer. This starts your workers’ comp claim and creates an official record.
3. Document everything at the scene. Capture as much evidence as you can through photos, videos, witness names and contact information, and the condition of any equipment involved.
4. Preserve any evidence. Keep defective equipment from getting repaired or thrown away. If a product caused your injury, keep it if at all possible.
5. Don’t give recorded statements without an attorney. Third parties and their insurance companies will move quickly to protect themselves. You should too.
6. Contact a workers’ comp attorney as soon as possible. There are deadlines on third-party claims, and evidence may disappear quickly. The sooner you get legal help, the stronger your position.

A skilled workers’ comp attorney can help you navigate the next steps and any challenges that may arise.

Common Challenges in Third Party Claims

Third-party claims are more complex than workers’ comp claims. Here’s what to be prepared for:

• You have to prove fault. Unlike workers’ comp, a third-party claim requires you to show that someone else’s carelessness caused your injury. You must prove that they had a duty to keep you safe, failed to meet it, and that failure directly caused you real harm. There is one exception, though. In defective product cases, you only need to show that the product was dangerous and caused your injury.
• The third party will argue it was your fault. Most states follow comparative negligence — if you were 20% at fault, you recover 80% of your damages. Virginia is different, and as an attorney practicing here, I want to flag something. Because Virginia follows contributory negligence, even slight fault on your part could bar you from recovering anything at all.
• There’s a deadline. States have different deadlines for third-party claims. In Virginia, you have two years from the date of injury to file. Miss it and you lose your right to sue — no exceptions.
• The reimbursement negotiation matters. Once you settle, your workers’ comp insurer is entitled to be paid back for what they covered. That amount is negotiable, and getting it reduced can make a significant difference in what you take home.
• Causation can be hard to prove. In cases involving toxic exposure or equipment failure, linking your injury to the third party’s actions may require expert witnesses and a detailed investigation.

Navigating all of this can be really challenging. Here are answers to the questions injured workers ask me most.

Frequently Asked Questions

Closing Thoughts on Workers Comp Third Party Claims

Workers’ comp exists for a reason — it gets you help fast when you need it most. But it does not typically replace everything a serious injury takes from you. If someone else’s negligence put you in that hospital bed or kept you off the job, you may have the right to hold them accountable. That’s not a legal technicality. That’s justice.

If you live in Virginia or the DMV area and you’ve been injured at work, the team at Gammon & Grange is ready to help you understand every option available to you. The consultation is free, and you pay nothing unless we win. Don’t settle for a partial recovery when a full one may be possible.

This blog provides general information about workers’ compensation. It is not legal advice and does not create an attorney–client relationship. Workers’ comp laws vary by state and depend on individual facts. For guidance on your situation, consult an attorney in your jurisdiction.