Workers Compensation & Third Party Claims
May 21, 2021
Since the enactment of the 2011 Kansas Workers Compensation Act (KWCA), and the subsequent adoption of the 6th edition of the American Medical Association’s (AMA) “Guides to the Evaluation of Permanent Impairment,” workers compensation claims in Kansas have become harder and harder to file and seem to come with much stingier payouts.
Here at Slape & Howard, we have been coordinating reform efforts with other legal groups to get revisions made to the KWCA. We currently have a court case pending over whether the state should continue to rely on the 6th edition or revert to the 4th edition, which allowed physicians more discretion when evaluating injuries.
Though workers compensation generally precludes the filing of personal injury claims against employers, certain circumstances can warrant third-party claims against providers, manufacturers, and sometimes even employers and coworkers.
If you’ve been injured on the job in Wichita, or anywhere across the state of Kansas, call us at Slape & Howard immediately to help you get the most out of your workers compensation claim. We can help you determine if you have a legitimate cause for filing a personal injury lawsuit.
What Is a Third-Party Claim?
An injury at work is covered most of the time by workers compensation, which is basically a fault-free insurance program. The employer is generally free of liability, and the employee is as well, except in certain circumstances. Therefore, an injury suffered at work is usually not open to a personal injury lawsuit against the employer unless the employer deliberately caused the injury.
However, if it can be shown that the injury was wholly or partially caused by an outside contractor, such as the cleaning or maintenance crew, or by a product or piece of machinery that was defective, a personal injury lawsuit is suddenly on the table.
For example, a nighttime cleaning crew leaves a floor extremely wet and slippery and does not post warning signs. The next morning an employee slips, falls, and gets injured — the cleaning company can now be held liable.
An example of using a third-party product could involve an employee operating a piece of machinery that malfunctions and causes an injury to the operator. The designer and/or manufacturer of the product could be held liable. Further, if the product did not come with proper operating procedures and warnings, liability could be based on what is called a “marketing defect.”
A chair that breaks and causes the employee to fall backward and injure their back could also put the manufacturer at risk of being held liable.
Other Third Party Examples
Another example, not involving contractors or products, could be an automobile accident. Say an employer sends an employee out on a business call and the employee is struck by another vehicle and injured. A personal injury lawsuit could be possible against the other driver if fault can be proven.
Construction sites are often prone to accidents caused by equipment and drivers of other vehicles, leaving open the potential for third-party claims.
If an employee injury or illness is caused by a toxic substance, a third-party claim may also be possible if the product was not safely packaged or instructions and warnings were insufficient.
Benefits and Challenges of A
Personal Injury Lawsuit
Workers compensation covers an employee’s basic medical needs, lost wages, reimbursement for medical transportation trips, and the like. A personal injury lawsuit, however, expands the compensation available to include pain and suffering, loss of companionship, modifications to your home or vehicle to accommodate your disability, loss of future income, and even punitive damages.
To prevail in a personal injury lawsuit, however, you must show that the third party:
Had a duty of reasonable care
Breached that duty through negligence, recklessness, or other act or omission
That breach of duty caused you to suffer damages as a result
The only exception to this three-part level of proof is a defective product, which often is subject to what is called “strict liability” in legal terms — meaning the defect itself is proof enough.
Two other factors must be weighed in a personal injury lawsuit. Even if you prevail, the workers compensation insurer, under the principle of subrogation, can claim the reward for themselves. Usually, however, their claim will cover only the compensation they’ve already provided you. You should get to keep the rest. Also, the reward may be reduced by showing you were partially at fault under Kansas’s comparative negligence rule.
Kansas’ Comparative Negligence Rule
Kansas’ comparative negligence rule assigns a percentage of fault to both the victim and defendant, should they both share some level of fault. In an auto accident, the driver you’re suing may be found to be 80% at fault for the accident, leaving you with 20% liability. Thus, your reward will be reduced by 20% to account for your level of fault in the accident. If you are awarded $100,000 in compensation for your injuries, $20,000 of that will be withheld to account for your 20% fault, meaning you will only be eligible to collect $80,000 in damages.
On the other hand, if your percentage of fault rises to 50 percent or more, you cannot collect anything. You have no claim.
Kansas also caps noneconomic damage rewards based on when the injury occurred. The current cap is $325,000 for injuries occurring on or after July 1, 2018. There are no caps on medical expenses, lost wages, or future earning power — in other words, economic damages.
Rely on Our Experience For
Your Workers Compensation Case
Remember, the insurance companies are not an employee’s ally. They will lowball you or deny your workers compensation claim using whatever tactic or legal trick they can come up with.
Let the workers compensation attorneys at Slape & Howard take on the insurance companies while you recover and get your life back to normal. We can also evaluate your unique situation to see if there is the possibility of filing a third-party personal injury lawsuit.
If you or someone you know has been injured on the job, call our personal injury and workers compensation attorneys today. Wherever you are in Kansas, we can help you exercise your rights to receive the just compensation you deserve. Through the years, we have helped thousands of clients just like you recover tens of millions of dollars throughout the state of Kansas — and we would be proud to represent you as well.