Can I skip the worker’s compensation and sue the employer after being attacked by a co-worker resulting facial fractures? 25 Answers as of May 22, 2013

First, I am not willing to settle for the meager "benefits" afforded by any state-sponsored uninsured employer’s workers compensation fund. I was attacked by a co-worker at work with a metal object. I had surgery on to repair the multiple facial fractures. I have filed a police report against the attacker and am seeking an aggravated assault charge. My employer (the president and CEO of the 8 or 10 employee company) has during this time off from work called me at home to harass me about the incident, exacerbating my injuries. He has threatened not to pay any of my bills, has stated I should have fought him back "like a man", "picked up something and hit him", has called me a "pansy", etc. He also refuses to terminate my attacker because "he needs both of us there". The owner is definitely fostering and even promoting violence in the workplace and extremely hostile working conditions. The owner has full-knowledge of the attacker's sordid history including multiple anger-management classes, a very recent assault charge he plead guilty to, a felony involving getting drunk and "shooting up a town" with a rifle and stormy relations at home with his "woman" which nearly always results in the attacker transferring those problems to work. According to the owner himself, the attacker brought his problems from home to work the day of the attack.

Ask a Local Attorney. 100% Anonymous. Free Answers.

Free Case Evaluation by a Local Lawyer: Click here
Lapin Law Offices
Lapin Law Offices | Jeffrey Lapin
I cannot answer your question ("Can I skip the worker's compensation and sue the employer after being attacked by a co-worker resulting facial fractures?") with a definitive answer as I am somewhat confused as you mention a "state-sponsored uninsured employer's workers compensation fund" but also state that President/ CEO has "threatened not to pay any of my bills." In Nebraska, the general rule is if a company did have workers' compensation insurance (or was self-insured as set forth by Nebraska law) at the time an employee is injured, the employee only claim against the company is under workers' compensation law. This rule applies to the company itself as well as its officers, directors and employees. If your employer was required to carry workers' compensation insurance and failed to do so then you might be able to sue the company for your injuries outside of workers' compensation. The key to whether you can sue your employer is whether it was insured. The President/CEO is protected by workers' compensation, assuming the company carried workers' compensation insurance, even if he knew that you were likely to be assault. You may, although it is unclear, may have a claim of retaliation or harassment against the President/CEO for his actions and comments after you were injured. You can sue your co-worker outside of workers' compensation as there is an exception to this general rule, mentioned above, if an employee is injured by a co-worker during a "willful and unprovoked" assault. I would suggest contacting a workers' compensation attorney about your case who can give you more information about your rights and options after learning more about what happened to you.
Answer Applies to: Nebraska
Replied: 10/4/2012
Havens & Lichtenberg PLLC
Havens & Lichtenberg PLLC | Michael Lichtenberg
In my opinion, yes, you can. Your injury is, arguably, not "work-related" in the strict sense, and not subject to worker's compensation. But, even if it is, you have stated a couple of causes of action against your employer that have nothing to do with worker's compensation. So, yes, you can sue the attacker (civilly, in addition to your criminal complaint), *and *the company, and the president of the company, personally.
Answer Applies to: New York
Replied: 9/28/2012
Law Office of Melvin Franke | Melvin Franke
Sue the other worker and see an experienced workers' compensation attorney.
Answer Applies to: Missouri
Replied: 9/27/2012
Bernard Huff, Attorney/Mediator
Bernard Huff, Attorney/Mediator | Bernard Huff
Yes, you can, but you have to prove that you did not initiate the fight or attack which caused your facial fractures and prove through medical and other documentation your injuries and damages.
Answer Applies to: Indiana
Replied: 9/27/2012
David F. Stoddard
David F. Stoddard | David F. Stoddard
Workers comp is ordinarily your exclusive remedy for injuries sustained on the job. I do not see an exception here. You should consult a workers comp attorney to see if there is any exception that you can rely upon.
Answer Applies to: South Carolina
Replied: 9/27/2012
    Burnett Evans Banks
    Burnett Evans Banks | Paul Evans
    You should consult an attorney experienced in these matters to go over all the facts with you and determine your best legal course. It sounds as though you have multiple causes of action against multiple defendants in multiple venues (i.e. criminal, civil, and administrative). The specific answer to your question is complicated and very fact-specific.
    Answer Applies to: Missouri
    Replied: 9/26/2012
    Danville Law Group | Scott Jordan
    Given the facts you presented, you might be able to sue outside of the workers' compensation system. You should contact a local personal injury attorney, one who is familiar with work place violence laws, and schedule a consultation.
    Answer Applies to: California
    Replied: 9/26/2012
    Ford, Howard & Cornett, P.C. | Bradley Cornett
    Based on the facts presented in your question, you have a valid co-employee claim against your co-worker. Under Alabama law, a co-employee claim is in addition to any claim against your employer (whether for work comp benefits or otherwise). You should consult with an attorney experienced with co-employee claims. Most attorneys will provide a free initial consultation with no obligation.
    Answer Applies to: Alabama
    Replied: 9/26/2012
    James M. Osak, P.C.
    James M. Osak, P.C. | James M. Osak
    Did you RECORD your boss at all? Too bad. You SUE your attacker and if boss instigated this attack, or is covering up . . . you sue the boss and maybe company.
    Answer Applies to: Michigan
    Replied: 9/26/2012
    Law Offices of Ronald A. Steinberg & Associates | Ronald A. Steinberg, BA, MA, JD
    You would have to prove that the employer knew that the co-worker had a history of doing things like that, and despite the knowledge, did not control him or fire him. Workers compensation is the sole "remedy" and to get outside of the act, you have to prove "gross negligence" or "willful and wanton behavior" of the employer (not the mental cretin who assaulted you). I would file a police action against him, however. Prosecute him for the assault; if he used anything that could be considered as a weapon, it could range from a felonious assault to something akin to attempted murder. Go for it!
    Answer Applies to: Michigan
    Replied: 9/26/2012
    Paul Whitfield and Associates P.A.
    Paul Whitfield and Associates P.A. | Paul L. Whitfield
    No.
    Answer Applies to: North Carolina
    Replied: 5/22/2013
    Garruto & Calabria, LLC
    Garruto & Calabria, LLC | Andrew F. Garruto
    There are a number of issues here. Besides the criminal action, you have a workers' compensation claim IN ADDITION to a lawsuit against your co-worker. You may also have a separate lawsuit against your employer on the harassment/hostile work environment.
    Answer Applies to: New Jersey
    Replied: 9/26/2012
    Robinette Legal Group, PLLC
    Robinette Legal Group, PLLC | Jeffery Robinette
    You are entitled to both Worker's Compensation and deliberate intent damages under West Virginia law. Please consult a personal injury lawyer who handles workplace injuries.
    Answer Applies to: West Virginia
    Replied: 9/26/2012
    Stephens Gourley & Bywater | David A. Stephens
    In most states no. Some states have an exception for intentional torts.
    Answer Applies to: Nevada
    Replied: 9/26/2012
    Andrew T. Velonis, P.C.
    Andrew T. Velonis, P.C. | Andrew Velonis
    Normally, you cannot sue your employer. Your situation is a bit different. I think you can go after the employer (the corporation, not the CEO) for your comp claim and also sue your co-worker for the intentional tort of assault.
    Answer Applies to: New York
    Replied: 9/25/2012
    Attorney at Law | Ernest Krause
    First you need to keep detailed notes of everything that happened (with the attacker and boss), everything that is happening (esp. with boss) and everything that will happen. Seek authorization to tape record phone conversations coming from the boss and anyone else who threatens you. Whenever an employee is injured on the job the employer is required to give you a claim form, simple document, that you return to be sent to the insurer. It seems like he had no insurance and that you are now stuck in the system. Does he have general liability insurance? I think you have a legal claim against the boss for negligent hiring and supervision of the co-worker. (Your claims are against the "employer" which is a corporation, partnership or sole proprietorship). As for the damage case against the boss there would be the issue whether the boss's harassment is personal behavior or can be pinned to the "employer."? You have a case against the perrson who caused the injury. You cannot get damages including "pain and suffering" via a civil suit for the consequences of a workers' comp. injury. You absolutely need the services of a competent workers' comp. attorney. He/she may well not know how to evaluate and pursue your civil case(s). So you will want to be a prudent shopper for legal assistance. The amount you eventually get depends a lot on the skill of the attorney. So be methodical!!
    Answer Applies to: California
    Replied: 9/25/2012
    R. D. Kelly Law Firm, P.L.L.C.
    R. D. Kelly Law Firm, P.L.L.C. | Robert Kelly
    Workers' Compensation provides the exclusive remedy for unintentional torts in the workplace. Assault is an intentional tort, so you can sue about it. The problem with such actions is often trying to collect on the judgment. See RCW Title 6 (http://apps.leg.wa.gov/RCW/default.aspx?Cite=6). Your statement also indicates a possible cause of action for the employer's intentional acts. You should probably see an attorney. PROVOST v. PUGET POWER, 103 Wn.2d 750, 696 P.2d 1238 (1985). (mrsc.org) RCW 51.24.020 (http://apps.leg.wa.gov/RCW/default.aspx?cite=51.24.020).
    Answer Applies to: Washington
    Replied: 9/25/2012
    Downriver Injury and Auto Law | Michael Heilmann
    You cannot sue your fellow employees.
    Answer Applies to: Michigan
    Replied: 9/25/2012
    The Law Office of Stephen R. Chesley, LLC
    The Law Office of Stephen R. Chesley, LLC | Stephen R. Chesley
    In New York State, an employer can not be sued for injuries sustained by his employee that occur during the workplace. The sole remedy is workers's compensation. Criminal and civil charges for the assault may be made against the employee for the assault.
    Answer Applies to: New York
    Replied: 9/25/2012
    Musilli Brennan Associates PLLC
    Musilli Brennan Associates PLLC | John F Brennan
    You MIGHT have a possibility, under the circumstances related, to get beyond or out of workers comp exclusivity. You sound engage an attorney to investigate you options. You also have a clear cause of action against your attacker, however it is doubtful that he would be collectable as it sound like he will shortly be incarcerated.
    Answer Applies to: Michigan
    Replied: 9/25/2012
    Michael L. Dworkin and Associates | John T. Van Geffen
    You are allowed to file suit for intentional torts, which this sounds like. You do not need to rely solely on workers compensation. I recommend contacting an attorney who specializes in both workers comp and personal injury.
    Answer Applies to: California
    Replied: 9/25/2012
    D. Miller & Associates | Jeffrey Streett
    Yes, you can opt to sue the employer rather than accepting worker's compensation. However, an employer is not going to be held responsible for the criminal acts of its employees.
    Answer Applies to: Texas
    Replied: 9/25/2012
    Walpole Law | Robert J. Walpole
    You should talk to a lawyer in your area. Obvioulsy, nothing has happened yet of any benefit the law might provide.
    Answer Applies to: Oklahoma
    Replied: 9/25/2012
Click to View More Answers:
12 3 4 5 Free Legal QuestionsConnect with a local attorney