Already receiving workers' compensation — can you still sue?

Attorney Answer

Usually not the employer, and usually not the colleague either — but often someone else.

Ala. Code § 25-5-53 is unusually broad, and reading it carefully is the whole answer:

The rights and remedies granted in this chapter to an employee shall exclude all other rights and remedies of the employee… at common law, by statute, or otherwise on account of injury, loss of services, or death… In addition, immunity from civil liability for all causes of action except those based upon willful conduct shall also extend to the workers' compensation insurance carrier of the employer; to a person, firm, association, trust, fund, or corporation responsible for servicing and payment of workers' compensation claims for the employer; … and to an officer, director, agent, or employee of the same employer.

Three things follow. The employer is protected, which is the trade at the heart of the system: compensation without proving fault, in place of a lawsuit. So is the carrier and the claims administrator. And so are co-employees — which is the part that surprises people, because it means the colleague who was operating the forklift is generally not someone you can sue.

The exception on the face of the section is willful conduct, not carelessness. That is a high bar and it is about the character of the behavior rather than how serious the injury was.

The real question is usually whether anyone outside that circle is responsible. A forklift's manufacturer, a maintenance contractor, or another company's employee working on the same site are all outside the immunity, and a claim against them runs alongside the compensation claim rather than instead of it.

What you can do

1. Establish who owned, maintained and manufactured the forklift. 2. Find out whether the operator worked for your employer or for another company on site. 3. Keep the compensation claim running — it is not an alternative to a third-party claim. 4. Ask for any incident report, maintenance record and inspection history for the machine. 5. Speak to an Alabama attorney about whether a third party outside the immunity is involved.

⏱ Time limits apply. Alabama sets deadlines for every kind of claim and they are shorter than most people expect. Confirm the one that governs your situation with an Alabama attorney before assuming there is time.

An Alabama attorney can tell you quickly how the facts here line up, and most will look at a matter like this at no cost.