By: James P. Krupka, Esq.

When a person is injured at work, that person can file a workers’ compensation claim petition against his employer and seek benefits for temporary disability, medical expenses and permanent disability, among other things.  Most people are aware that, with rare exceptions, one cannot sue one’s employer or a co-employee for an injury sustained at work. However, there are often circumstances under which an employee is injured at work due to the negligence of a third party who has no relationship to the injured party’s employer. Under these circumstances, a person can file both a workers’ compensation claim and a claim against the negligent third party. For example, if a person operates a vehicle as part of his employment and that person is injured in an automobile accident, that person can file a workers’ compensation claim and a claim against the other driver. If a person is injured by a slip and fall on ice in one’s employer’s parking lot, that person could make both a workers’ compensation claim and a claim against the owner of the property (if the owner is not the employer) and/or against the snow removal contractor hired to remove snow and ice from the premises.

It must be noted, however, that one cannot simply accept additional money from the third party or its insurer and keep all of the workers’ compensation benefits paid. Rather, in a situation where a person has received workers’ compensation benefits and later receives compensation for the same injuries/losses from a third party, that person is required by New Jersey law to reimburse his employer out of the third party settlement/judgment for a percentage of the benefits received from the employer’s workers’ compensation carrier.  N.J.S.A. 34:15-40 states that where the third party recovery is greater than the workers’ compensation benefits received, the employee must reimburse the employer for the medical expenses incurred and compensation payments paid, less the expenses of suit (up to $750) and the attorney’s fee (up to 33 1/3 % of the third party recovery).  Where the third party recovery is less than the workers’ compensation benefits paid, the employer is liable for the difference but the employer is still entitled to recover its remaining lien, less costs and attorney’s fee.

If you are injured at work, you should not simply assume that workers’ compensation benefits are your only means of being made whole. Rather, you must retain an attorney to investigate whether, in addition to workers’ compensation benefits, a claim against a third party is viable. Although a third party recovery may result in a large payment being made back to the employer for the workers’ compensation benefits previously received, there may also be additional money resulting from the third party settlement/judgment that could further compensate you for your economic and non-economic losses.