Can You File a Workers’ Comp Claim and a Personal Injury Lawsuit in South Carolina?

If you were hurt on the job in South Carolina, you have probably been told that workers’ compensation is your only option. For many injuries, that is true. But not always. When someone other than your employer or a coworker caused your injury, you may be able to pursue a workers’ compensation claim and a separate personal injury case at the same time. That second claim is called a third-party claim, and for seriously injured workers it often makes the difference between partial coverage and full compensation.

Our firm handles both sides of this equation for people across Charleston, North Charleston, Summerville, and the wider Lowcountry. This article explains when a third-party claim exists, what each system pays for, and how the two interact. This is general information rather than legal advice for your specific situation, so please talk with an attorney about the facts of your own case.

Why Workers’ Compensation Alone Is Often Not Enough

South Carolina’s workers’ compensation system is built on a trade-off. You do not have to prove your employer did anything wrong. In exchange, you generally cannot sue your employer, and what you can recover is limited by statute. Our overview of how South Carolina workers’ compensation works covers the basics of filing and benefits.

Workers’ compensation typically covers:

• Authorized medical treatment related to the injury
• Temporary disability benefits, usually around two-thirds of your average weekly wage, subject to a state maximum
• Permanent disability or impairment benefits
• Certain death benefits for families

What it does not cover is significant. Workers’ compensation pays nothing for pain and suffering. It pays nothing for loss of enjoyment of life. It replaces only part of your wages, not all of them. And it does not compensate a spouse for loss of consortium. For a worker with a permanent injury, those uncovered losses can dwarf what the system actually pays.

What a Third-Party Claim Is

The bar against suing your employer does not extend to everyone else. If a person or company outside your workplace caused your injury through negligence, you can bring an ordinary personal injury claim against them while your workers’ compensation claim proceeds.

Common examples in the Lowcountry include:

• Motor vehicle crashes on the clock. A delivery driver, sales rep, or service technician struck by a negligent driver on I-26 or Highway 17 has a workers’ comp claim through their employer and a personal injury claim against the at-fault driver.
• Commercial truck collisions. Charleston’s port traffic puts a great many workers alongside tractor-trailers. When a trucking company’s negligence causes a crash, that company is a third party. See our guide for 18-wheeler accident claims in Charleston.
• Construction sites with multiple contractors. If a subcontractor’s crew drops material or leaves an unguarded opening, that separate company may be liable even though your own employer is not.
• Defective equipment or machinery. A product liability claim may lie against the manufacturer of a machine that failed, a missing guard, or a defective safety device.
• Unsafe premises. Workers injured by a hazard on property owned by someone other than their employer may have a premises liability claim against the property owner.
• Negligent drivers striking road or utility crews. Common along Charleston’s constant road construction corridors.

What the Second Claim Adds

A third-party case is a standard negligence claim, so the damages available are much broader than workers’ compensation allows. Those may include pain and suffering, full lost wages rather than a percentage, loss of future earning capacity, permanent impairment, disfigurement, and a spouse’s loss of consortium.

For workers with catastrophic injuries, this gap is enormous. A spinal cord injury or serious head injury can mean a lifetime of care and lost earning ability that statutory benefits were never designed to cover. Our article on catastrophic injury claims in South Carolina explains how those long-term costs are documented and valued.

How the Two Claims Interact

Running both claims together requires some care, because they are connected in ways that can catch people off guard.

The Workers’ Compensation Lien

The most important connection is the lien. When your employer’s workers’ compensation carrier pays your medical bills and wage benefits, it generally has a right to be reimbursed out of any third-party recovery you obtain. In practice, this means part of your settlement may go back to the carrier.

That is not a reason to skip the third-party claim. It is a reason to have someone negotiating the lien. These amounts are frequently reduced, and how the lien is handled can meaningfully change what actually reaches you. Coordinating the two claims from the beginning, rather than settling one and then discovering the consequences for the other, is the practical value of having one firm look at both.

Fault Still Matters in the Third-Party Case

Workers’ compensation is largely no-fault. The third-party claim is not. South Carolina applies modified comparative negligence, meaning your recovery is reduced by your share of the fault and eliminated entirely if you are more than 50 percent responsible. Our explanation of South Carolina’s comparative negligence rule goes through how this works.

The Deadlines Are Different

Workers’ compensation has its own notice and filing requirements, and they come quickly. You generally must report a workplace injury to your employer within 90 days, and file a claim with the South Carolina Workers’ Compensation Commission within two years. The third-party personal injury claim usually falls under the three-year statute of limitations described in our article on the statute of limitations for personal injury claims.

Because the workers’ compensation deadlines arrive first and are shorter, missing them while focused on the injury claim is a real risk. Both clocks start running on the day you are hurt.

Who Is Not a Third Party

It helps to be clear about the limits. You generally cannot bring a third-party claim against:

• Your own employer, in most circumstances
• A coworker acting within the scope of employment
• In many cases, a statutory employer, such as a general contractor that carries coverage for subcontractors’ workers

That last category surprises people on construction sites, where the general contractor may be treated as a statutory employer and shielded from suit. Whether a particular company qualifies is a fact-specific question, and it is one worth having examined rather than assumed.

Frequently Asked Questions

Will filing a third-party claim hurt my workers’ comp benefits?

Pursuing a third-party claim does not disqualify you from workers’ compensation. The carrier does gain a reimbursement interest in your recovery, which is why the two claims should be coordinated rather than run separately without regard for each other.

What if I was partly at fault for the accident?

Your workers’ compensation benefits are generally unaffected, because that system is largely no-fault. Your third-party recovery would be reduced by your percentage of fault, and barred if you were more than half responsible.

Can my employer retaliate for filing?

South Carolina law prohibits retaliating against an employee for pursuing a workers’ compensation claim. If you believe you are facing retaliation, document what is happening and raise it with an attorney promptly.

How long will all of this take?

The two claims often move on different timelines, and the third-party case is usually the longer of the two. Our article on how long a personal injury claim takes in South Carolina walks through the typical stages.

What does it cost to have an attorney review both?

Our firm offers a free consultation, and personal injury matters are typically handled on a contingency fee, which we explain in our article on contingency fees in Charleston personal injury cases.

Have Both Claims Looked At Together

The workers who lose the most value are usually the ones who never learned a second claim existed. An adjuster handling your workers’ compensation file has no obligation to tell you that the driver who hit your work truck, or the contractor whose crew created the hazard, can be pursued separately.

If you were injured on the job anywhere in the Lowcountry and anyone outside your own company may have played a role, it is worth having both claims reviewed together and early, while the evidence is still fresh and every deadline is still open. You can contact Grooms Law Firm for a free consultation with no obligation. For broader background, our South Carolina personal injury FAQ and our workers’ compensation practice area are good starting points.