Third-Party Claims After a Virginia Workplace Injury

KEY TAKEAWAYS

Virginia's workers' compensation system generally bars injured employees from suing their own employer, but you can often file a separate lawsuit against a negligent third party whose actions contributed to your injury.

A successful third-party claim can recover damages workers' comp does not cover, including pain and suffering, and the full extent of your lost wages. However, your employer's insurer typically holds a lien against that recovery.

Because Virginia also applies its strict contributory negligence rule to these lawsuits, unlike the no-fault workers' comp system, working with an experienced workers' comp lawyer early can help protect both claims at once.

Workers' compensation is often described as the exclusive remedy for a workplace injury, and in most cases, that's true when it comes to your own employer. But an on-the-job injury doesn't always trace back only to your employer's conduct. A distracted driver, a subcontractor's forklift operator, a defective tool, or a hazard on someone else's property can all play a role. When that happens, Virginia law allows injured workers to pursue a separate civil claim against that outside party, in addition to workers' compensation benefits.

At Dulaney, Lauer & Thomas, our workers' compensation attorneys have helped clients through the Virginia workers’ compensation process for decades. Here’s what to expect if your claim involves a third party.

Why You Can’t Directly Sue Your Employer

Virginia's workers' compensation system is built on a trade-off: employees give up the right to sue their employer in court for a workplace injury, and in exchange, they can collect no-fault benefits, meaning they don't have to prove their employer did anything wrong. This exclusivity generally applies only to the employer and co-workers acting within the scope of their jobs, a principle explained further in our overview of Virginia workers' compensation law. It does not extend to outside companies or individuals who had no employment relationship with you.

Third Parties in a Virginia Workplace Injury Claim

A “third party” is any person or company, other than your employer or a fellow employee acting in the course of employment, whose negligence contributed to your injury. Depending on the facts, a third-party claim might be brought against:

A driver who caused a crash while you were making deliveries or driving as part of your job
A subcontractor (or a subcontractor's employee) working on a shared job site who caused your injury
The manufacturer of a defective tool, machine, or piece of equipment that malfunctioned and hurt you
A property owner whose unsafe premises contributed to your accident, if you were injured while working at a location your employer doesn't own
A company responsible for maintaining or repairing equipment that failed and caused your injury

Picture a construction worker struck by heavy equipment operated by an employee of another contractor on a shared site. The injured worker can file for Virginia workers' compensation benefits against their own employer, and separately pursue a third-party claim against the equipment operator's company for the full scope of damages that workers' comp doesn't cover.

What a Third-Party Lawsuit Can Recover

Workers' compensation benefits are valuable but limited. They typically cover medical treatment and about two-thirds of your lost wages. A third-party civil claim can pursue the full range of damages available in a personal injury case, including the remaining third of your lost income, compensation for pain and suffering, and other non-economic losses that workers' comp does not address at all.

How Workers' Comp Interacts with a Third-Party Lawsuit

Virginia law prevents an injured worker from double-recovering for the same injury. Under Virginia Code § 65.2-309, your employer's workers' compensation carrier has a lien against any settlement or verdict you obtain from a third party, and the carrier may also step into your shoes to pursue that third party directly if you don't. In practice, this usually means the insurer that has been paying your workers' comp benefits is reimbursed out of the third-party recovery. However, Virginia law also requires the employer to share proportionally in your reasonable attorney's fees and litigation costs, so the reimbursement doesn't come entirely out of your net recovery.

Because of this lien, it's important not to settle a third-party claim on your own without protecting your employer's or insurer's interests. Coordinating both claims from the start, rather than treating them as unrelated matters, generally produces a better overall outcome.

How Virginia's Contributory Negligence Rule Applies to Third-Party Claims

Workers' compensation is no-fault, so you can generally recover benefits even if you were partly responsible for your own accident. A third-party civil lawsuit is not. Virginia follows a strict contributory negligence rule for workplace injury cases. If you're found even one percent at fault for the accident that caused your injury, you can be barred from recovering anything from the third party, no matter how badly they were also at fault.

This is exactly why so many injured workers benefit from having an attorney evaluate a potential third-party claim early, before statements are given to any insurance adjuster who might use them to argue you share some of the blame.

What to do If You Think a Third Party Caused Your Work Injury

Don't assume workers' compensation is your only source of recovery; ask about a potential third-party claim as soon as possible.
Preserve evidence connected to the third party, such as photos of defective equipment, contractor information, or the other driver's details.
Be mindful of separate deadlines: a third-party personal injury lawsuit in Virginia generally must be filed within two years, a much shorter window than the deadline for filing a workers' comp claim.
Notify your workers' compensation attorney or insurer before agreeing to any settlement with the third party or their insurance company.
Avoid giving a recorded statement to the third party's insurer without first speaking to an attorney about how it could affect both claims.

If the workplace accident involved heavy equipment, a subcontractor, or a fatality, our related FAQs go into more detail on how these claims are built:

The experienced workers' compensation lawyers at Dulaney, Lauer & Thomas are here to help. If you were injured at work in Virginia, we can walk through both your workers' comp claim and any third-party options simultaneously.

Can I file a lawsuit against a third party if I was injured at work in Virginia?