Third-Party Claims After a Work Injury in Virginia: Who You Can Sue, and What the Comp Lien Takes

Corey R. PollardWorkers’ compensation attorney · Former insurance defense · $100M+ recovered

Can you sue someone other than your employer for a work injury in Virginia? Sometimes, yes. Workers’ comp is your only remedy against your employer. But if a negligent driver, property owner, equipment manufacturer, or a company outside your employer’s trade caused the injury, you may have a second claim that pays what workers’ comp never will. The first question is whether that person or company is a true third party under Virginia law or whether the rule that protects your employer also protects them. This page answers that question.

What workers’ comp takes away, and what it leaves

When the Workers’ Compensation Act applies to your injury, it is your only remedy against your employer. Virginia Code Section 65.2-307. You cannot sue your employer for negligence, with two potential exceptions, or for anything else related to the incident. If you file a civil lawsuit anyway, the employer responds with a plea in bar and the circuit court dismisses the case.

The Act does not protect everyone else. The bar on other recoveries runs to your employer, and to a close group of people and companies the law treats like your employer. Everyone outside that group is a “third-party,” and you can sue them the same way any person injured outside of work can.

This ability to recover damages from third parties matters because of what workers’ comp doesn’t pay. Wage-loss benefits are two-thirds of your average weekly wage, and every dollar of wage replacement and permanent partial disability benefits draws from a single 500-week cap under Va. Code Section 65.2-518. Even if you have a permanent impairment that will affect your ability to work for the rest of your life, the checks will stop after less than 10 years of benefits, except in the most catastrophic injury cases. You also receive nothing for pain, suffering, or diminished quality of life, or for a diminished earning capacity. My types of workers’ comp benefits article explains what that system pays. A third-party claim helps you recover the rest of what the injuries have taken from you.

The one-sentence version of everything below: workers’ comp usually pays first but is limited by statute; the third party pays for what workers’ comp does not cover.

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Frequent Types of Third-Party Claims for Occupational Injuries

Some of the more common types of third-party actions include:

Premises Liability (Slip and Falls, Trip and Falls, Etc.)

Suppose you are hurt working on a property that your employer does not own or control. Then you may have a third-party action against the property owner or general contractor (if a construction site) for its negligence.

The premises owner may have tort liability if you can show one of the following caused your injuries:

• Violation of a federal OSHA safety standard (or similar state regulation)

• Violation of a municipal building code

• Failure to warn you of a dangerous condition it knew about (such as a slippery surface)

For example, our firm has won cases for home health nurses who suffered foot fractures and meniscus tears when they fell because of an unsafe condition the homeowner knew of but had failed to fix.

In addition, we have represented truckers who suffered head trauma and back injuries requiring spinal fusion in third-party lawsuits against the owners of the buildings where the accidents happened. For example, one truck driver tripped over a metal pole the company had known about for more than a year.

How Do I Know if I Have a Third-Party Claim for My Work Injury?

Generally, third-party claims are more complicated and challenging than workers comp claims. A thorough accident investigation is essential to determining the potential for third party liability for a work accident.

Third-Party Claim Investigation

Your investigation should include:

• Taking pictures of the accident scene

• Getting a copy of the police crash report if your injury arose from a motor vehicle collision

• Determining the year, make, and model of all involved vehicles if you were hurt in an auto accident

• Determining the manufacturer, year, and model of any equipment or heavy machinery involved in your accident

• Asking the employer if it hired an outside contractor to work on workplace design, assemble equipment, or maintain equipment, then obtaining documents from that outside contractor

• Obtaining and reviewing all investigative materials created by OSHA or a state occupational safety agency if there was an investigation of the workplace accident

• Researching the potential defendants to determine their corporate history, safety history, distributors, and materials they offer about the use and safety of their products

• Reviewing the advertising materials of potential defendants, with a focus on whether a specific defendant warrants that the vehicle or equipment in question is safe

• Determining your burden of proof (strict liability vs. negligence)

• Determining whether you have any consumer fraud claims in addition to a personal injury lawsuit

• Identifying the property owner if dangerous workplace conditions caused your injury (premises liability claim)

• Obtaining copies of all insurance policies that may provide coverage if you get a judgment through the court system

• Identifying all outside contractors involved in the accident or present on the job site

• Determining the owner(s) of any vehicles involved in the workplace injury

I recommend using the workers compensation discovery process, including depositions, interrogatories, requests for admissions, and requests for documents production, to obtain the information listed above.

After you complete your investigation and get the proper documents and testimony, you are ready to evaluate a third-party case’s likelihood of success.

Below are some of the issues I analyze when determining whether an injured worker has a potential third party lawsuit or is limited to workers comp.

Common Work Accidents Caused by Third-Parties that Result in Personal Injury Lawsuits

Here are some of the most common work accidents caused by third-parties.

Automobile Accidents

Many of my workers comp clients suffered injuries in a work-related car crash. Some of them are professional drivers operating tractor-trailers or delivering packages; others are merely driving to a meeting.

No matter how often you drive for work, you may file a workers comp claim and a third-party lawsuit if another driver’s negligence causes the crash. Depending on the amount of auto insurance available and how good your case is, you may be able to recover enough money to make you whole for your losses.

For more information on this topic, read my article: Car Accident Settlements. Then call a top-rated auto accident attorney.

Construction Site Accidents

It’s common for many employers to work together on one construction site. There is the General Contractor that oversees the construction project, and subcontractors who help complete the project.

Depending on who you work for, multiple people and employers might owe you damages for your construction accident injury.

For example, suppose you’re a roofer who suffers an electric shock injury (electrocution) because the general contractor failed to ensure the wires weren’t live. In that case, you may have a workers comp claim through your employer and a personal injury lawsuit against the general contractor, especially if you can prove that the general contractor failed to comply with OSHA safety rules.

Defective Products

If your work accident involved equipment or heavy machinery, you should always investigate whether you have a third-party lawsuit against the manufacturer or distributor of the product. You have a valid product liability lawsuit if you find a defect and prove that defect caused your accident.

I handle many product liability claims for injured workers receiving payments through workers comp. Many of these clients work in construction, transportation, logistics, or warehouses like those owned and operated by Amazon, Wal-Mart, Target, Kroger, Food Lion, and other large employers.

Product liability actions are hard-fought cases requiring tens of thousands of dollars (or more) to handle correctly. You will need to hire expert witnesses to win.

Your employer and its workers compensation insurer should be interested in helping you find a defect and pursue your product liability action. They can recover some of the money they’ve paid through workers comp if the product liability claim is successful.

Sexual Assault

You are eligible for workers comp benefits if you are sexually assaulted in the course of employment and can prove that your employment’s nature increased the assault risk.

You may also pursue a personal injury action against the attacker, even if the attacker is your employer or co-employee. This is an exception to the exclusive remedy rule.

Another option is applying for cash payments under the Virginia Victims Fund, a state program that helps victims of violent crime pay their out-of-pocket expenses, including medical bills.

Toxic Torts (Toxic Chemicals and Fumes)

If your work injury results from exposure to a toxic chemical, you may get workers compensation benefits and file a third-party lawsuit against the poisonous chemical manufacturer.

For example, asbestos, lead-based paint, and fumes can cause heart and lung conditions, cancer, and burn injuries – especially if there is an explosion. Depending on the facts, you may file a negligence claim against the chemical’s third-party manufacturers and distributors.

Workplace Violence

Workplace violence is a common cause of work-related injuries.

You can receive workers comp benefits for a job-related assault in Virginia and other states if you can prove that the other person attacked you because of your employment. For example, a pizza delivery driver who is assaulted and robbed usually has no problem proving the violence was connected to their job. The same is true of bank tellers and cashiers who suffer physical injuries or develop Post Traumatic Stress Disorder (PTSD) because of workplace incidents.

Receiving workers comp benefits for injuries resulting from workplace violence does not stop you from filing a personal injury claim against the person who attacked you.

Other Financial Factors to Consider When Deciding to File a Third-Party Action for a Workplace Injury

Litigation and trial are stressful. You should only put yourself through it if you have a reasonable chance of success and recovering a judgment or settlement from the third-party defendant. A verdict that is uncollectable or capped because the defendant has inadequate assets does you no good.

My general rule is that you should always investigate potential third-party claims, even if you have a Workers Compensation Award Letter and receive weekly payments.

Whether you move forward with the potential third-party lawsuit depends on the factors discussed earlier in this article and how much you would keep from any personal injury settlement or verdict.

Most states, including Virginia, allow the workers comp insurer to recover some of the money they’ve paid in medical expenses and wage loss benefits from your third-party settlement or verdict. This is known as repayment of the workers comp lien.

Some states, including Virginia, also give workers comp insurers the right to adjust the amount of workers comp benefits you’ll receive based on the outcome of the third-party case. This is why it often makes sense to settle your workers comp claim and negotiate a lien reduction when your third-party action is resolved.

Get Help Deciding if You Can File for Workers Comp and Sue a Third-Party for a Work Accident

When you call me after a work injury or auto accident, I’ll look at your case from every angle. The goal is to put the most amount of money in your pocket.

Sometimes this means negotiating a workers compensation settlement. Other times it means submitting a workers comp claim, filing a personal injury lawsuit, and even applying for Social Security Disability benefits if your injuries are severe enough.

For help navigating the maze of laws that may apply to your work accident, call me: (804) 251-1620 or (757) 810-5614. Determining you have a third-party claim is only the first step. You must also decide what courts have jurisdiction and file the lawsuit (complaint) in the jurisdiction that gives you the best chance of winning. Then you have to execute your plan to succeed.

I’m ready to help you and your family during this challenging time. Call now.

Common questions, straight answers.

About the authorCorey Pollard is a Virginia workers’ compensation and Social Security Disability attorney in Richmond. Best Lawyers in America® (2020–2026), $100M+ recovered, and a former insurance defense lawyer — which is the part that matters.