Hurt in a crash while working: which claim applies?

When you are hurt in a crash while working, the state's workers' compensation system and a claim against the other driver are separate. In each state we read, a statute says the workers' compensation claim does not by itself end a claim against the third party: Alabama § 25-5-11, Oklahoma 85A § 43, South Carolina § 42-1-560 and Tennessee § 50-6-112 (each quoted below). What differs is the notice rule, the filing deadline, and what the employer or its insurance carrier gets back from a recovery.

Tennessee and South Carolina state a deadline for the third-party court action inside the workers' compensation statute (quoted below). For Alabama and Oklahoma we found no such deadline in the sections we read, so check the state deadline pages: Tennessee, Alabama, Oklahoma and South Carolina, and the deadline calculator. Whether a particular crash counts as work-related, for example a delivery run versus a commute, depends on facts and on case law this page has not read.

• Notice. Section 25-5-78 says "an injured employee or the employee’s representative, within five days after the occurrence of an accident, shall give or cause to be given to the employer written notice of the accident." [7] If the notice is not given, the employee may lose physician's fees and accrued compensation unless the person was prevented by physical or mental incapacity, fraud or deceit, or equal good reason. It adds: "Notwithstanding any other provision of this section, no compensation shall be payable unless written notice is given within 90 days after the occurrence of the accident or, if death results, within 90 days after the death." [7]
• Claim deadline. Section 25-5-80 says claims "shall be forever barred unless within two years after the accident the parties shall have agreed upon the compensation payable under this article or unless within two years after the accident one of the parties shall have filed a verified complaint as provided in Section 25-5-88." [8] Cumulative-stress, death and incapacity cases have their own wording in the section. Section 25-5-81 provides that either party may submit a dispute "to the circuit court of the county which would have jurisdiction of a civil action in tort between the parties." [9]
• Third party. Section 25-5-11(a) says that if the injury "was caused under circumstances also creating a legal liability for damages on the part of any party other than the employer," the employee "may proceed against the employer to recover compensation under this chapter or may agree with the employer upon the compensation payable under this chapter, and at the same time, may bring an action against the other party to recover damages for the injury or death." [10] If damages are recovered, "the amount of the damages recovered and collected shall be credited upon the liability of the employer for compensation," and the employer "shall be entitled to reimbursement for the amount of compensation theretofore paid on account of injury or death" to the extent of the recovery [10]. For certain listed defendants, including an officer, director, agent or employee of the same employer, the same subsection allows an action "only for willful conduct which results in or proximately causes the injury or death." [10] We do not interpret how that applies to a co-worker or any other person. Deadline for the court action: Alabama deadlines.

• Notice. 85A O.S. § 68(A) says: "Unless an employee gives oral or written notice to the employer within thirty (30) days of the date an injury occurs, the rebuttable presumption shall be that the injury was not work-related. Such presumption must be overcome by a preponderance of the evidence." [11] The Commission's notice form to employees says: "Unless oral or written notice is given to the employer within thirty (30) days, the claim for compensation may be forever barred." [14]
• Claim deadline. Section 69(A)(1): "A claim for benefits under this act, other than an occupational disease, shall be barred unless it is filed with the Workers' Compensation Commission within one (1) year from the date of the injury or, if the employee has received benefits under this title for the injury, six (6) months from the date of the last issuance of such benefits." [12] Occupational disease, death and other claims have their own periods in the section.
• Third party. Section 43(A)(1)(a): "The making of a claim for compensation against any employer or carrier for the injury or death of an employee shall not affect the right of the employee, or his or her dependents, to make a claim or maintain an action in court against any third party for the injury." [13] Under (A)(2), any amount recovered from a third party is applied by deducting reasonable fees and costs of collection, after which "the employer or carrier, as applicable, shall receive two-thirds (2/3) of the remainder of the recovery or the amount of the workers' compensation lien, whichever is less," with the rest going to the employee or dependents [13]. Subsection (B)(4) separately addresses uninsured and underinsured motorist coverage: an employer or carrier liable for compensation "shall be entitled to maintain a third-party action against the employer's uninsured motorist coverage or underinsured motorist coverage." [13] We do not interpret how that applies to any policy. Deadline for the court action: Oklahoma deadlines.

• Notice. Section 42-15-20(A) says the injured employee or representative "immediately shall on the occurrence of an accident, or as soon thereafter as practicable, give or cause to be given to the employer a notice of the accident." [15] Under (B), "no compensation shall be payable unless such notice is given within ninety days after the occurrence of the accident or death, unless reasonable excuse is made to the satisfaction of the commission for not giving timely notice, and the commission is satisfied that the employer has not been prejudiced thereby." [15] Subsection (A) also names exceptions, for example where the employer had knowledge of the accident.
• Claim deadline. Section 42-15-40: "The right to compensation under this title is barred unless a claim is filed with the commission within two years after an accident, or if death resulted from the accident, within two years of the date of death." [15] Occupational disease and repetitive trauma have their own rules in the section.
• Third party. Section 42-1-560(a): the right to compensation "shall not be affected by the fact that the injury or death is caused under circumstances creating a legal liability in some person, other than the employer or another person exempt from liability under Section 42-1-540 to pay damages therefor." [16] Subsection (b) says the injured employee is entitled to receive the compensation "and to enforce by appropriate proceedings his or their rights against the third party; provided, that action against the third party must be commenced not later than one year after the carrier accepts liability for the payment of compensation or makes payment pursuant to an award under this title, except as hereinafter provided." [16] The carrier "shall have a lien on the proceeds of any recovery from the third party" to the extent of compensation paid, less expenses of recovery [16]. Subsection (c) provides that, if the employee has not sued or settled in time, "the right of action of the injured employee" can "pass by assignment to the carrier," and that "the assignment shall not occur less than twenty days after the carrier has notified the injured employee." [16] We do not interpret how these time limits apply to any case. See also South Carolina deadlines.

The rest of this page is the Tennessee material: the exclusive-remedy rule, when a crash is covered, notice and the one-year deadline, and the third-party claim.

Section 50-6-108(a) says: "The rights and remedies granted to an employee subject to this chapter, on account of personal injury or death by accident, including a minor whether lawfully or unlawfully employed, shall exclude all other rights and remedies of the employee, the employee's personal representative, dependents or next of kin, at common law or otherwise, on account of the injury or death." [2] In plain terms, for an injury covered by workers' compensation, the employee's claim against the employer is the workers' compensation claim, not a lawsuit against the employer. Section 50-6-108(c) says the section is not to "be construed to preclude third party indemnity actions against an employer who has expressly contracted to indemnify the third party." [2]

Workers' compensation covers an "injury" defined in § 50-6-102(12) as "an injury by accident, a mental injury, occupational disease including diseases of the heart, lung and hypertension, or cumulative trauma conditions including hearing loss, carpal tunnel syndrome or any other repetitive motion conditions, arising primarily out of and in the course and scope of employment, that causes death, disablement or the need for medical treatment of the employee." [1] An injury is "accidental" only if it "is caused by a specific incident, or set of incidents, arising primarily out of and in the course and scope of employment, and is identifiable by time and place of occurrence" (§ 50-6-102(12)(A)) [1]. An injury "arises primarily out of and in the course and scope of employment" only if it "has been shown by a preponderance of the evidence that the employment contributed more than fifty percent (50%) in causing the injury, considering all causes" (§ 50-6-102(12)(B)) [1].

Whether a particular crash is on the job (for example a delivery run versus a commute) depends on facts and on case law we have not read for this page.

Employee or independent contractor. The workers' compensation chapter covers "employees." Section 50-6-102(10)(D)(i) says that to decide whether an individual is an employee, a subcontractor or an independent contractor, "the following factors shall be considered," including "The right to control the conduct of the work" and "The right of termination." [1]

• Notice. Section 50-6-201(a) says the injured employee "shall, immediately upon the occurrence of an injury, or as soon thereafter as is reasonable and practicable, give or cause to be given to the employer who has no actual notice, written notice of the injury." [4] It continues: "Compensation is not payable under this chapter unless the written notice is given to the employer within fifteen (15) days after the occurrence of the accident, unless reasonable excuse for failure to give the notice is made to the satisfaction of the tribunal to which the claim for compensation may be presented." [4] Under (c)(3), "The notice must be given to the employer or to the employer's agent having charge of the business at which the injury was sustained by the employee." [4] Subsection (b) has a separate 15-day rule for gradual or cumulative injuries, which this page does not cover.
• Filing deadline. Under § 50-6-203(b)(1), when the employer has not paid benefits, the right to compensation "shall be forever barred, unless the notice required by § 50-6-201 is given to the employer and a petition for benefit determination is filed with the bureau on a form prescribed by the administrator within one (1) year after the accident resulting in injury." [5] If the employer has voluntarily paid benefits, (b)(2) runs the one year "from the latter of the date of the last authorized treatment or the time the employer ceased to make payments of compensation to or on behalf of the employee." [5] Subsection (d) extends the period for one year from the date the incapacity ceases in case of physical or mental incapacity, other than minority, of the injured person or the injured person's dependents. This page does not cover how the incapacity rule or other exceptions apply to any case.

Section 50-6-112(a) allows an injured worker to take workers' compensation and also pursue "the other person" (the third party) "by proper action in a court of competent jurisdiction." [3] The deadline is stated in (d)(1): the action "must be instituted in all cases within one (1) year from the date of injury." [3]

Other rules in § 50-6-112 that readers often ask about:

• Employer's lien. If the employer has paid compensation, "the employer shall have a subrogation lien against the recovery," and may intervene in the action to protect and enforce it (§ 50-6-112(c)(1)) [3].
• Attorney fees. The attorney who obtains a recovery "shall have a first lien for the fees against the recovery" (§ 50-6-112(b)) [3].
• Missing the year. Failure to bring the action within the one-year period "shall operate as an assignment to the employer of any cause of action in tort," and the employer then has six months after the assignment to commence the suit (§ 50-6-112(d)(2)) [3].
• Injury out of state. If the cause of action arises in another jurisdiction with a longer limitation period, the court "shall apply the statute of limitations that provides the injured worker, or those to whom the injured worker's right of action survives, the greatest amount of time in which to institute an action" (§ 50-6-112(d)(3)) [3].

Also see Tennessee deadlines and who pays medical bills. The hospital lien statute says its lien does not apply to injuries covered by the Tennessee Workers' Compensation Law [6].

• Tennessee deadlines
• Tennessee fault rules
• Who pays medical bills
• Truck accident
• Alabama, Oklahoma and South Carolina deadlines