Some work injuries are caused not by someone else but by the injured worker. Sometimes, an accident is no one’s fault except the New Jersey worker, either by not paying attention or being careless. If this happens, the injured worker often wonders, Can I receive workers’ compensation if my injury was partially my fault?

This is a fair question. The bottom-line answer is that yes, even if the workplace injury was your fault, you can still receive New Jersey workers’ comp benefits. You can still have your employer’s workers’ compensation insurance company pay for your work-related medical bills and wage loss benefits even when you caused the accident.


Workers’ Comp and Fault

The New Jersey workers’ comp system, as well as most of the states’ workers’ comp systems in the country, do not consider (with a few exceptions) fault when it comes to work-related accidents and injuries. The system was designed this way based on a deal made about 100 years ago between the major workers’ unions and major employers. Basically, the employers agreed to cover the medical bills and wage loss of every employee who was hurt at work, regardless of the injury and even if the injury was the fault of the employee. In return, employees gave up the right to file lawsuits against their employers for their negligence that caused employees to get hurt on the job.

The resulting deal is that the New Jersey workers’ comp system doesn’t consider who was at fault when determining if an employee was hurt at work. The only questions are whether a work injury occurred on the clock and whether there are medical bills and wages that need to be paid. In short, work-related injuries are what workers’ compensation covers.


Exceptions to the Workers’ Comp No-Fault System

As with anything dealing with the legal system, there are some exceptions to the rule. Under New Jersey’s workers’ comp law, there are exceptions to the idea that fault doesn’t come into play when adjudicating workers’ comp claims. There are types of workplace injuries that are not the employer’s fault:

  • If the employer can demonstrate any of the following situations through a preponderance of credible and competent evidence, then a workers’ comp claim can be denied.
  • The employee’s work-related injury or death was caused by the employee being impaired and intoxicated by alcohol or the illegal use of controlled substances.
  • The employee’s work-related injury or death was caused by the employee’s willful failure to make use of a reasonable and proper personal protective device furnished by the employer.
  • The employee’s injury or death at work was self-inflicted.
  • If the employer can establish any of these scenarios, then the employee will not be able to collect workers’ comp benefits.

The area where there is the most litigation regarding this issue is whether personal protective devices were available to employees. In many cases, the employer claims that there were safety devices available, but the evidence will demonstrate that the devices were not present, were old and broken, or the employer never required employees to use the devices. Or it may be that there were proper personal protective devices available that would have prevented the injury, but the employees were never trained on using the devices.


Workers’ Comp and Personal Injury Cases

A side issue regarding fault in work injuries is when a third party causes the work injury. Can the notion of fault be considered when the work-related injury was caused by someone outside of work and not the employer or a co-worker? The answer is yes.

The perfect example is when a delivery driver, while on the clock and delivering packages for their employer, is struck by another vehicle. The other driver was negligent and ran a stop sign, causing the crash. Because the delivery driver was working at the time, they are entitled to workers’ comp medical and wage benefits. But because the accident was caused by the negligence of the at-fault other driver, the delivery driver can file a lawsuit and seek compensation above and beyond the benefits they would receive under workers’ comp. At that point, the delivery driver would be able to seek pain and suffering damages against the at-fault driver.

This concept can work in other types of personal injury cases as well. For example, let’s say a construction worker is walking on scaffolding at a job site. The scaffolding was set up by another company but was installed incorrectly, causing the scaffolding to collapse while the construction worker was using it. In this scenario, the injured worker can get workers’ comp benefits from the employer but also file a lawsuit seeking pain and suffering compensation against the scaffolding company.


Call the Experienced Workers’ Comp Attorneys at Petro Cohen

Petro Cohen, P.C. has assisted injured workers in South Jersey for decades. The firm’s Workers’ Compensation Department has more than 100 years of combined experience, among Department Head and Senior Partner Frank Petro, Partners Suzanne Holz Meola, and Terri Hiles, and attorneys Daniel Rosenthal and Sam Scimeca. Working together with you, they will ensure you receive the medical treatment you need and the compensation you deserve. Petro Cohen, P.C. has offices to serve you in Northfield, Cape May Court House, Cherry Hill, and Hamilton, NJ. To determine if you may have a potential workers’ comp and/or personal injury case, schedule your free and confidential consultation with a Petro Cohen, P.C. attorney by calling 888-675-7607. You can contact us through our online form or via 24/7 live chat at