Tom McCutcheon – Attorney at Law
Q: My husband is an electrician and was recently injured on the job. He was working on scaffolding inside a plant when another contractor operating a forklift ran into the scaffolding knocking it over and injuring my husband. My husband’s employer’s workers compensation insurance has paid all of his medical bills and is paying a portion of his wage while he is off work. Recently, we were contacted by the adjuster and asked if we were going to pursue a claim against the person operating the forklift. The adjuster told us that we have a third party case. Can you please explain what the adjuster is talking about?
Peggy
Tuscumbia, AL
A: Peggy, thank you for your question and I hope your husband is making a speedy recovery. Most of the time when a person is injured on the job, they only have a claim for workers compensation benefits. This is called the “exclusive remedy.” In other words, Alabama law only allows an injured employee to sue his employer for workers compensation. If, however the employee’s injuries are caused by a third party, i.e. someone other than a co-employee, the injured worker may pursue a traditional case of negligence.
An injured worker’s recovery under Alabama’s Workers Compensation Act is very limited. The injured worker is only entitled to payment of medical bills, payment of 67% of his average weekly wage while recuperating, and payment of permanent partial or permanent total disability benefits based upon the workers future loss of earning capacity. Permanent partial disability benefits are capped at a maximum of $66,000.00. Permanent total disability benefits means that the injured worker will recover 67% of his gross average weekly wage for the remainder of his disability or life. There is no recovery for lost wages, pain and suffering, or any other form of compensatory or punitive damages, if warranted.
In a third party case, however, the injured worker’s damages are not subject to a cap. The injured worker may recover compensatory damages such as lost wages, loss of enjoyment of life, loss of future earning capacity, pain and suffering, and mental anguish just to name a few. In addition, if the conduct of the person who caused the accident was so bad, for example, they were intoxicated, punitive damages may apply. As you can see, the monetary recovery is so much greater than anything one can expect to receive from workers compensation.
Based upon the details of your husband’s accident that you provided in your letter, it would appear from first glance that he definitely has a “third party” case against the driver of the forklift. Tom and I have handled these type cases throughout Alabama and the Southeast. If you and your husband have not spoken to an attorney who has considerable experience handling these type cases, I would encourage you to do so as soon as possible. Remember, you only have two years from the date of his accident to have either filed suit or settled the case or it may be barred forever by the applicable statute of limitations.
Remember, buckle up and drive safely.
McCutcheon & Hamner, P.C.
2210 Helton Drive
Florence, Alabama 35630
Telephone: 256-764-0112
Facsimile: 256-349-25299
