workerscompjudgeThose that experience a work-related injury are always qualified for workers’ compensation benefits in the state of New Jersey, no matter who or what was at fault. Victims are eligible for benefits without having to prove who was responsible for the incident since New Jersey is a no-fault state (however, employers may still argue whether the injury was actually “work-related,” as well as the extent of the injury, amount of benefits, and medical treatment required).

Workers’ compensation may cover any injury or illness that is proven work-related, including: accidents, repetitive stress injuries, developed illnesses, pre-existing conditions worsened by job tasks, injuries for which the victim was partly at fault.

This no-fault law is beneficial to victims, but with it comes a compromise: In exchange, injured workers may not take legal action related to the injury against their employer (such as a negligence lawsuit) outside of workers’ compensation.

On the other hand, work injury victims are still permitted to pursue a lawsuit against a faulted third party. If a defective product, toxic substance, unsafe conditions, or intentional behavior contributed to the incident, injured workers may find it realistic to seek a products liability, toxic tort, negligence, or personal injury lawsuit against the manufacturer or third party.

While workers’ compensation is a convenient, efficient state program, benefits only account for medical care and a percentage of previous wages. The purpose is to allow the victim to provide for themselves and/or their family while out of work and does not offer additional compensation to make up for pain and suffering. Those that have the opportunity to seek a third party lawsuit would be smart to do so.

A recent case in a New Jersey appellate court found that if injured workers do not pursue the third party lawsuit when possible, employers have the right to do so to protect their lien rights. If the victim has not pursued the civil action one year after the injury, the employer can file a lawsuit in the victim’s name with ten days notice.

Recent New Jersey Court Findings

A recent New Jersey case resulted in some key findings on the matter: Elhelou v. CVS Pharmacy, Inc., v. Lipinski Outdoor Services v. All State Power Wash, A-4731-13T1, (App. Div. July 9, 2015).  An employee of CVS in Jamesburg, NJ , Mr. Elhelou, suffered a slip and fall in February 2010 while shoveling snow at work. He received workers’ compensation benefits but did not seek a third party lawsuit.

The next year, Elhelou was informed that if he did not seek a negligence lawsuit, the employer would do so to protect its rights. Attorneys for CVS identified Lipinski Outdoor Services, the company responsible for snow removal at the store, as the third party at fault for Elhelou’s injury. They sought a $90,630.87 workers’ compensation lien against Lipinski. Lipinski then filed a third party complaint against All State Power Wash, claiming that that company was actually responsible for removing snow from the CVS.

What followed was a complicated legal mess in which Elhelou, the original injured worker, was not entirely cooperative due to surgery, recovering health issues, and other reasons.

Several years later the lien climbed to $198,000, but CVS settled for $93,500. They could not continue without a signed release of claim from Elhelou, the injured worker. Elhelou denied. The Superior Court ruled in favor of CVS: They may continue with the lawsuit and receive the full $198,000 lien because there was no obligation to settle.

Several significant rulings were made by The Appellate Division during this case.

  • If an injured worker does not file a third party lawsuit or abandons the action, the employer may open or reopen legal action “in the name of” the employee rather than “on behalf of”
  • The employer may bring a third party lawsuit one year after the incident if the employee fails to do so
  • Employer must provide ten days notice to the employee
  • Any further notice of settlement or action is not required
  • Employee then has no right to participate or file legal action, but may recover funds awarded in excess of the compensation lien and suit expenses

Filing a Third Party Lawsuit

What injured workers may takeaway from this case: It is a good idea to seek a third party lawsuit if you have the opportunity to do so. If you choose not to file legal action, your employer may choose to do so to receive reimbursement for your workers’ compensation benefits. You will lose your right to file a third party lawsuit and any potential compensation for pain and suffering.

If you have cause for a third party lawsuit, you can pursue the lawsuit as well as workers’ compensation benefits. Third party lawsuits are realistic when a person, company (other than the employer), or product can be identified as the clear cause of the injury. If you are unsure whether you are eligible to file a third party lawsuit or have any questions about the workers’ compensation process, we encourage you to consult with an experienced attorney regarding your specific situation.

We can share some general information if you choose to proceed: The process of filing a third party lawsuit will differ from workers’ compensation. The workers’ compensation is a state program designed to offer a fairly quick and easy process in the best of cases. Third party lawsuits, however, will go through the court system and may require more time and complications. In addition, fault must be proven in order for a third party lawsuit to succeed. This can take a great amount of research, paperwork development of evidence, tracking down of witnesses, and other tasks it takes to put together a quality case.

It is highly recommended to contact a skilled lawyer to advise you in the third party lawsuit process. An experienced lawyer will complete all of the above tasks to develop your case as well as contact professionals in their network to aid in its success. They will have a history of working with other lawyers, judges, and tricky insurance companies that will help them know how to best negotiate and recognize fair and unfair settlements.

If you need a local New Jersey lawyer, we urge you to contact The Hayes Firm today. We are a lawyer finding service that has access to the best workers’ compensation and personal injury attorneys in the state and will connect you with one free of charge. Simply give us a call or send us an email with the details the surrounding your situation, and we will review your case as soon as possible. We can answer questions regarding the workers’ compensation process and help determine your eligibility for a third party lawsuit. If further legal action is realistic, we will connect you with a skilled, local personal injury or workers’ compensation attorney. Contact us today for your free consultation.