Do I have a personal injury case or a workers compensation claim and how will that affect me?

These are common questions which I hear from many potential new clients. The answer is in the details. Set forth below is an outline of some of the most significant differences between a personal injury case and a workers comp claim.

1. If the injury occurred on the job and no one was at fault you probably have a workers compensation claim. But, on-the-job injuries can lead to a personal injury claim. On-the-job injuries caused by the fault of someone other than your employer or a co-worker (i.e. a subcontractor) can be the basis for a personal injury claim.
2. Even if the injury arose from your employer’s negligence or co-workers negligence, you still only have a Worker’s Compensation claim. One aspect of workers comp law is that you cannot sue your employer for negligence so long as the employer provides workers comp insurance.
3. The compensation that is recoverable (damages) in a personal injury case is based upon lost wages, medical expenses, physical disability and pain and suffering. An injured plaintiff is entitled to be “made whole”. The recoverable damages however are often reduced by comparative fault of the plaintiff or a 3rd party who contributed to the injuries.
4. The compensation that is recoverable (benefits) in a workers compensation case is not intended to make the injured worker “whole”. Instead, it is to partially compensate the injured worker while they recover from the injury so they can get back to work. The compensation recoverable as “benefits” include time loss benefits, medical expenses and travel benefits, “permanent partial impairment” benefits, reemployment benefits and under certain circumstances attorney fees and costs. The amount of time loss benefits are based upon the injured workers compensation rate. The “permanent partial impairment” benefit is based upon the percentage of impairment rating given to a permanently injured employee.
5. In a personal injury case, the plaintiff must “prove” with enough evidence that the defendant was responsible for the event which caused the injuries. If the plaintiff fails to “prove” all of the elements of the case, the defendant wins. In a workers compensation case, so long as the evidence establishes some linkage between the employment and the injury, it is presumed that the employee is entitled to benefits. Thus, it is much easier to prevail before the Worker’s Compensation board in litigating a worker’s compensation claim than before a jury in a personal injury case.
6. A personal injury case is commenced by the filing a lawsuit in court. This must occur within 2 years of the injury, or the claim will be barred by the statute of limitations.
7. The workers compensation claim follows a completely different route to resolution. First, the injury must be reported to the Worker’s Compensation board and employer within 30 days of the injury. The insurer for the employer will contact employee and arranged to pay medical expenses and other benefits which it believes are owed under the law. The vast majority of workers compensation claims are simply resolved by the insurance company paying the required benefits.
8. When a dispute occurs over what benefits are to be paid to the injured worker, “litigation” is commenced before the Worker’s Compensation board by the injured worker filing a Worker’s Compensation claim form. From there, the procedures for handling the claim are governed by specific rules and regulations. The Worker’s Compensation board does have technicians which will provide unrepresented employees with some assistance in handling the claims.
9. Most significant personal injury cases are filed by an attorney. Attorneys handle personal injury cases for a percentage of what can be recovered from the defendant or its insurance company. The court does not supervise the amount the attorney charges.
10. In workers compensation cases, attorneys can only be paid if the Worker’s Compensation board concludes the attorney’s involvement “was beneficial” to the employees recovery and approves the requested attorney fees. It is actually against the law for an attorney to charge a workers compensation claimant more than $300 for legal services unless Worker’s Compensation board has approved the requested attorney’s fees. The insurance company for the employer in almost all instances pays the attorneys fees approved by the Worker’s Compensation board and attorney’s fees do not come out of the employees “benefits”.

This is just a general outline of some of the most significant differences between the workers comp case and a personal injury case. If you need answers to your questions please contact the law offices of Elliott T Dennis.