Differences Between a Workers’ Compensation Claim and a Third-Party Claim

Differences Between a Workers’ Compensation Claim and a Third-Party Claim

Differences Between a Workers’ Compensation Claim and a Third-Party Claim

By jfhoen

In Virginia, the cause of your workplace injury may matter a great deal. This is because, depending on the cause of your injuries, you may be entitled to file a third-party claim against a negligent individual and/or company and receive benefits in addition to your workers’ compensation benefits. There are important distinctions between the two types of proceedings, however. Understanding these differences can help you determine what benefits you may be entitled to and how to proceed in pursuing them.


There is no “defendant” per se in a worker’s compensation claim. Instead, the injured worker files a workers’ compensation claim with the Workers’ Compensation Commission and that claim is paid according to Virginia’s workers’ compensation regulations and laws.

Conversely, in a third-party action a claim for compensation is brought against someone other than your employer (or an employee of your employer). This individual or entity is sometimes referred to as the “third party.” Instead of compensation being sought from the Commission, compensation is sought directly from the at-fault third-party.


In a workers’ compensation claim, it usually does not matter who is at fault in causing the workplace injury. Benefits are typically available even if the worker him- or herself is determined to be responsible for causing the accident. The employer’s own carelessness is also not taken into account in most workers’ compensation claims (although, if the employer or a co-worker sexually assaulted the employee at work, this may be a relevant consideration in certain cases and may permit suit against the employer directly).

Third-party lawsuits are premised on negligent or reckless conduct, so the actions and fault of the third-party are central to the success of the claim. If the third-party did not act carelessly or recklessly in causing the worker’s injuries, then the third-party claim will not prevail regardless of the seriousness of the workers’ injuries.


One unique feature of third-party claims is the employer’s insurer’s right to subrogation. If the employer’s insurer pays workers’ compensation benefits to the employee and the employee is later able to obtain judgment against a third-party, the employer’s insurer is able to recoup the amount of money it paid to the worker. This prevents the worker from being compensated twice for the same losses and thereby receiving a “windfall.” This may help the injured worker as legal counsel for the employer’s insurer would have a strong motivation to cooperate with and assist the injured worker in pursuing his or her third-party claim.

To learn more about the differences between filing a workers’ compensation claim and filing a third-party claim and to discover which claim is available in your situation, contact the experienced workers’ compensation legal team at Hampton Injury Law. With nearly two decades of experience in helping injured Virginia workers, attorney Jan Hoen is able to guide workers to take the steps necessary to protect their rights and obtain the compensation they need. Contact Hampton Injury Law today at (757) 838-1173 or contact the firm online.

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