The two systems
Almost every work injury involves one or both of these. Which applies decides what you can claim and from whom.
- Industrial accident
- An accident in an industrial workplace such as a factory, plant, refinery, warehouse, mine or construction site, typically involving machinery, chemicals, vehicles, heights or heavy equipment. More on this →
- Workers' compensation
- A no-fault insurance system providing medical benefits and partial wage replacement to employees injured at work, regardless of fault. In exchange it usually prevents the worker suing their employer directly. More on this →
- Exclusive remedy
- The principle that workers' compensation is generally the only claim an employee can bring against their own employer for a workplace injury. It does not affect claims against anyone else. More on this →
- Third-party claim
- A civil claim against someone other than your employer — a contractor, equipment manufacturer, property owner or driver — whose negligence contributed to your injury. Not limited to the workers' compensation schedule of benefits. More on this →
- Non-subscriber
- A Texas employer that has opted out of workers' compensation, which Texas uniquely permits. Employees of non-subscribers can generally sue them directly for negligence, and the employer loses several standard defences. More on this →
- LHWCA
- The Longshore and Harbor Workers' Compensation Act — a federal system covering longshore, harbor, shipyard and ship repair workers in maritime employment on or adjacent to navigable waters, in place of the state system. More on this →
- FECA
- The Federal Employees' Compensation Act, covering civilian employees of the federal government. Administered by the US Department of Labor rather than any state agency. More on this →
- Defense Base Act
- An extension of the LHWCA covering employees working overseas on US military bases or under certain federal contracts.
- Self-insured employer
- An employer that pays workers' compensation claims from its own funds rather than through an insurer, usually via a third-party administrator. The obligations are the same; the party writing the cheque is not.
Who can be held responsible
Industrial sites are shared by several employers at once, and the answer is rarely just one company.
- Negligence
- A failure to take reasonable care where a duty required it, causing injury. Proving it requires a duty of care, a breach of that duty, causation, and damages.
- Product liability
- A claim holding the manufacturer, distributor or seller of a defective product responsible for injuries it causes. In many states this is strict liability — you need not prove negligence, only that the product was defective and caused harm. More on this →
- Premises liability
- The duty a property owner or occupier owes to people on the property to keep it reasonably safe, or to warn of hazards they know about.
- Statutory employer
- A contractor treated by law as the employer of a subcontractor's staff. In states such as Virginia this makes the contractor liable for benefits but also gives it exclusive remedy immunity, closing off a civil claim against it. More on this →
- Multi-employer worksite
- An OSHA policy under which more than one employer can be cited for the same hazard — the one that created it, the one controlling the site, the one whose employees were exposed, and the one responsible for correcting it. More on this →
- Borrowed servant
- A worker employed by one company but working under another's direction, common with staffing agencies. Both the general and the special employer may be able to claim exclusive remedy protection, depending on the state. More on this →
- Respondeat superior
- The rule that an employer is liable for an employee's negligence committed within the scope of their employment.
- Joint and several liability
- A rule under which each responsible defendant can be liable for the whole of the damages, not merely their share. Whether it applies, and in what form, varies considerably by state. More on this →
- Res ipsa loquitur
- Literally "the thing speaks for itself" — a principle allowing negligence to be inferred from the nature of an accident that would not normally happen without it.
Fault and its consequences
How much your own conduct matters depends entirely on which state the claim is brought in.
- Comparative fault
- The rule in most states, reducing compensation in proportion to the claimant's own share of responsibility rather than barring the claim.
- Contributory negligence
- A far stricter rule under which any fault on the claimant's part — even 1% — bars recovery entirely. Only Maryland, Virginia, the District of Columbia, Alabama and North Carolina still apply it. More on this →
- Last clear chance
- A narrow exception to contributory negligence, allowing recovery where the defendant had a genuine final opportunity to avoid the accident and failed to take it.
- Assumption of risk
- A defence arguing the injured person knowingly accepted a known danger. Its availability in workplace cases is limited, and non-subscriber employers in Texas lose it entirely.
- Eggshell plaintiff rule
- The principle that a defendant is responsible for the full extent of the harm caused, even where a pre-existing condition made the claimant more vulnerable than most. More on this →
Money
What a claim can cover, and how the two systems differ on it.
- Economic damages
- Measurable financial losses — medical costs, lost wages and lost future earning capacity. More on this →
- Non-economic damages
- Real losses that are not easily measured in money: pain and suffering, disability, disfigurement. Generally unavailable through workers' compensation but recoverable in a third-party claim, subject to state law.
- Punitive damages
- Damages awarded to punish particularly egregious conduct rather than to compensate loss. Availability and caps vary widely by state, and they are rare.
- Loss of consortium
- A claim brought by a spouse or close family member for the loss of companionship, services or relationship caused by the injury.
- Average weekly wage (AWW)
- The earnings figure used to calculate workers' compensation benefits. How it is computed — and what counts as earnings — is a frequent source of dispute and underpayment.
- Subrogation
- An insurer's right to recover what it paid out of any compensation the injured worker later recovers from a liable third party. It affects what actually reaches you from a settlement. More on this →
- Structured settlement
- A settlement paid in instalments over time rather than as a single lump sum, sometimes through an annuity. More on this →
- Medicare Set-Aside (MSA)
- A portion of a settlement set aside to cover future injury-related medical care that Medicare would otherwise pay for. Required in some settlements involving Medicare beneficiaries.
- Contingency fee
- A fee arrangement where the attorney is paid a percentage of what is recovered, and only if the claim succeeds — so there is no upfront legal cost. More on this →
Medical and disability
The vocabulary insurers use to decide what your injury is worth.
- Maximum medical improvement (MMI)
- The point at which a condition has stabilised and is unlikely to improve further with treatment. Claim value is best assessed at MMI, not before.
- Impairment rating
- A percentage figure expressing permanent impairment after MMI, often assessed using the AMA Guides. It frequently drives the size of a permanent disability award.
- Independent medical examination (IME)
- A medical examination arranged by the employer or insurer. Despite the name the examining physician is selected and paid by them, and an IME report often forms the basis of a benefit reduction or denial.
- Temporary total disability (TTD)
- Benefits paid while an injured worker is entirely unable to work during recovery.
- Permanent partial disability (PPD)
- Benefits for a lasting impairment that still allows some work. The most commonly disputed category.
- Permanent total disability (PTD)
- Benefits where an injury permanently prevents any gainful employment.
- Light duty
- Modified work offered during recovery. Refusing an offer that is genuinely within your restrictions can jeopardise benefits — but so can accepting work that exceeds them.
- Vocational rehabilitation
- Retraining or job-placement assistance for a worker who cannot return to their previous occupation.
- Occupational disease
- Illness caused by workplace exposure over time rather than by a single accident — such as hearing loss, respiratory disease or chemical-induced illness. More on this →
- Latency period
- The gap between exposure and the appearance of disease, sometimes decades. It is why occupational disease deadlines usually run from diagnosis rather than exposure.
Deadlines and procedure
Two clocks run after a work injury, and they are set by different parts of the law.
- Statute of limitations
- The deadline for filing a claim, varying by state and claim type. Missing it usually bars the claim permanently regardless of merit. More on this →
- Notice period
- The separate, much shorter deadline for telling your employer you were injured — measured in days in many states. Giving notice does not satisfy the filing deadline.
- Discovery rule
- A principle starting the limitation clock when the injury and its cause were known, or reasonably should have been, rather than at the date of exposure. Central to occupational disease claims.
- Discovery
- The pre-trial phase in which each side exchanges evidence through depositions, written questions and document requests. More on this →
- Deposition
- Sworn testimony given out of court, recorded by a court reporter, which can be used at trial.
- Spoliation
- The loss, alteration or destruction of evidence. Where a party responsible for preserving evidence fails to, a court may impose sanctions or allow an adverse inference against them. More on this →
- Expert witness
- A specialist — engineer, process safety expert, physician, economist — permitted to give opinion evidence within their expertise.
- Wrongful death claim
- A claim by surviving family members after a fatal accident, covering losses such as financial support, funeral costs and loss of companionship. More on this →
Safety and regulation
The standards that should have prevented the accident, and that leave a documentary trail when they did not.
- OSHA
- The Occupational Safety and Health Administration, which sets and enforces US workplace safety standards. Its citations and investigation records are often significant evidence in an injury claim. More on this →
- MSHA
- The Mine Safety and Health Administration, regulating mine safety under standards separate from OSHA. More on this →
- Process Safety Management (PSM)
- An OSHA standard (29 CFR 1910.119) for facilities handling listed highly hazardous chemicals above threshold quantities, requiring hazard analyses, mechanical integrity programmes and contractor oversight. More on this →
- Lockout-tagout (LOTO)
- The procedure for isolating energy sources before maintenance so equipment cannot start unexpectedly. Failures are a recurring cause of crush and amputation injuries. More on this →
- Permit-required confined space
- A space large enough to enter but not designed for occupancy, with restricted entry and a recognised hazard. Entry requires isolation, atmospheric testing and an attendant.
- Hot work permit
- Written authorisation for welding, cutting or grinding in an area with fire or explosion risk, normally requiring gas testing immediately before work starts. More on this →
- Arc flash
- An explosive release of energy from an electrical fault, producing extreme heat, light and pressure. A leading cause of severe electrical burns in industrial settings. More on this →
- Machine guarding
- Physical barriers and interlocks preventing contact with moving parts. Removed, bypassed or defective guarding is among the most common findings after a machinery injury. More on this →
- Management of change
- The requirement to reassess hazards whenever a process, material or piece of equipment is modified. Skipped change reviews are a frequent root cause in process plant incidents.
If a term here is being used about your own claim and you are not sure what it means in practice, that is usually worth a short conversation rather than more reading. Start with which route applies to you or our frequently asked questions.
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