Can I Collect Worker’s Compensation For My Personal Injuries?

Last updated on: July 19, 2013


The answer to this question depends on a number of factors including, but not limited to, the nature of your employment, the circumstances of your accident, whether your employer carries workers’ compensation insurance, whether you opted into the program, the location in which the accident occurred, and the legislative/judicial treatment of the particular state’s workers’ compensation statute. Not every state requires employers to carry workers’ compensation insurance, so it is important to consult an attorney in the state where the accident or injury occurred to determine your eligibility for reimbursement through a workers’ compensation system.

Why Should I try to collect worker’s compensation?

Put simply, if you or a loved one have been injured or killed in a workplace accident, you may be entitled to compensation for damages. While one avenue for recovery may include workers’ compensation benefits, you may also be able to recover from negligent third parties or intentional tortfeasors. Given the complexity of workplace accidents, it is important to consult an attorney with experience in job-related injuries.

At Zinda Law Group, our personal lawyers have delt with numerous workplace accident claims across Texas, Colorado, Arizona, and New Mexico. We are here to help you seek maximum compensation possible for any work-related injuries. We may be able to fight to get you and your family the compensation they deserve, striving to hold all negligent parties accountable. Call Zinda Law Group today at (800) 863-5312 for a 100% free case evaluation with our experienced workplace accident lawyers.

What Is Workers’ Compensation?

Regardless of the industry in which you work, workplace accidents are an ever-present concern for employees and employers alike. From slip-and-falls in corporate offices to defective machinery accidents on construction sites, injuries in the workplace can happen anywhere and at any time. The good news is that if you are injured on the job, then you are likely entitled to compensation; however, the party from whom you will recover may vary.

Workers’ compensation (also known as “workers’ comp”) is a form of state-designed insurance, provided by employers and opted into by employees. Workers’ compensation statutes provide a framework for states to issue wage replacements and medical benefits to employees injured in the course of their employment. In exchange for enrollment in this rapid and guaranteed compensation system, employees are mandated to relinquish their right to sue their employer for negligence. Across the country, the majority of states have made it compulsory for almost all employers to carry some form of workers’ compensation insurance (depending on the characteristics of the organization), with the notable exception of Texas. 

In reality, although workers’ compensation provides some level of coverage for medical expenses and lost wages sustained by employees and/or their beneficiaries, it is not always adequate to cover the full extent of the damages, both physical and psychological, that the accident victims have suffered and will continue to suffer for the rest of their lives. In-fact, the Workers’ Compensation Act often acts as a cap to limit the amount of recovery a client can pursue from their insurer, preventing them from receiving a full, fair, and complete recovery.  Thus, there are a number of exceptions and alternatives that you should understand to fully protect your rights to compensation for work-related injuries.

Exceptions and Alternatives to Recovery Via Workers’ Compensation

While the vast majority of injured employees will only recovery by virtue of workers’ compensation, there are some rare exceptions where they may still retain the ability to file a personal injury claim against either their employer or some other party.

Failure to Maintain Workers’ Compensation Insurance

The protections of any state’s workers’ compensation laws only extend to those employers who have regularly maintained workers’ compensation insurance. Therefore, if your employer failed to procure workers’ compensation insurance during your employment or failed to continue paying for workers’ compensation insurance prior to your accident, you may still be able to file a personal injury lawsuit against your employer.

If you experience any resistance from your employer about filing a workers’ compensation claim, or if you suspect that your employer was not insured at the time of your accident, do not hesitate to contact a personal injury attorney.

Third Party Exception

Although workers’ compensation laws limit claims against employers, they do not limit claims against any other third-party operators in the workplace. Therefore, even though employees may not be entitled to sue their own employer, they may be able to sue employees of other companies that were working at the site and who contributed to the accident. Third-party claims fall outside the purview of workers’ compensation and act as if you are simply suing a non-employer for personal injuries suffered as a result of that party’s own negligence.

For example, while an employee may not be able to hold their employer directly liable for a construction accident, an independent contractor or subcontractor that was hired by the employer and who caused (or contributed to) the conditions of the accident will not be insulated from lawsuits. Another example of a third-party claim may involve a defect in a tool or piece of machinery. In this case, claimants could file a products liability claim, thereby suing the manufacturer of the defective tool, machinery, and product, instead of suing the employer directly.

Judicial Exceptions

Another means of suing your employer, despite having workers’ compensation insurance, is through judicially recognized exceptions to particular state’s workers compensation statutes.

Known Hazardous Environments

For example, the New Mexico Supreme Court in Delgado v. Phelps Dodge (2001) created an exception that allowed a plaintiff to sue their employer for personal injury and wrongful death if the employer knowingly sent the employee into an extremely dangerous and unnecessary situation where serious harm or death was virtually certain to occur. Delgado set an extremely high evidentiary bar to overcome the exclusive remedies available under the New Mexico Workers’ Compensation Act but allows for injured employees and their surviving family members to seek full compensation in this extremely rare situation.

Gross Negligence and Substantial Certainty of Death or Injury

Perhaps the most ubiquitous examples of judicial exceptions to the “exclusive remedy provisions” of workers’ compensation statutes are those involving gross negligence and/or substantial certainty of death or injury. Nearly every state has created some exception that preserves a worker’s right to sue their employer for personal injuries caused by the employer’s own wantonly dangerous or reckless conduct.

A recent example of such a judicial exception surfaced in Texas as a part of Berkel v. Lee. In Berkel, the Texas 14th Court of Appeals ruled that an injured worker, covered by workers’ compensation insurance, may recover against his employer if he can prove the employer knew with “substantial certainty” that its own conduct would cause the harm the worker suffered.

Possible Work Injuries Include:

Although every workplace accident is unique, some of the most common types of work-related accidents include:

  • Transportation Accidents generally occur while using a company car or while completing work on behalf of your employer.
  • Musculoskeletal or Performance-based Injuries typically are the result of insufficient training and are caused by repetitive strain, prolonged exposure to abnormal temperatures or vibrations, prolonged abnormal posture, or forceful exertion or pressure on a particular part of the body.
  • Complications with Equipment or Machinery. Defective equipment may be grounds for a third party product liability claim or a claim arising from a lack of instruction or supervision.
  • Slip-and-Falls. Whether it’s a slick work surface, falling downstairs, or a tumble from a roof or scaffolding, slip-and-falls are the most pervasive form of workplace injuries across all industries. A trip-and-fall can occur in similar circumstances.


At Zinda Law Group, our experienced personal injury attorneys have helped many workplace accident survivors and their beneficiaries get their lives back on track after suffering injuries, death, and financial losses. We have the knowledge and resources necessary to help you seek the maximum compensation for any associated medical bills, lost income, property damage, workers’ compensation insurance, pain and suffering, and all the other costs your accident has incurred.

Our firm believes that workplace accident victims should not have to worry about their ability to afford high-quality legal representation in order to receive compensation. This is why we offer 100% free consultations. Zinda Law Group operates on a contingency fee basis, meaning you will pay nothing unless we achieve a favorable settlement, judgment, or verdict for your workplace accident or workers’ compensation claims. That’s our No Win, No Fee Guarantee.

If you or a loved one has been injured while at the workplace, call Zinda Law Group at (800) 863-5312 to receive your free consultation with our workers’ compensation attorneys today. We are also offering free virtual consultations during the COVID-19 crisis.

Meetings with attorneys are available by appointment only.

Where Zinda Law Group Practices

We were founded in Texas and have a team of Austin personal injury lawyers as well as attorneys in Dallas and Fort Worth.

As we’ve grown we expanded out west to El Paso, Texas,  and subsequently into Arizona, adding Tucson Personal Injury Lawyers to the firm, as well as adding offices in Colorado. These include Denver Personal Injury Lawyers and offices in surrounding cities, such as the one in Colorado Springs.