June 21, 2017
There are many differences between personal injury law and workers’ compensation law. Personal injury law is based on “tort” law and is intended to fully compensate an injured person, whereas workers’ compensation law is based upon statutes and regulations. The underlying principle behind workers’ compensation law is to provide partial compensation to the injured worker so they can return to work.
An injured plaintiff in a personal injury case must prove all of the elements of the case in order to recover damages. Specifically, the plaintiff must prove the negligence of the other party, that the negligence caused the injuries and the extent of those injuries. Workers’ compensation benefits are presumed due to the injured worker so long as the injury occurred on the job. Thus, it is easier to recover compensation and/or partial compensation, in a workers’ compensation case than in a personal injury case.
A personal injury case is resolved before a judge and jury. The judge instructs what the law is and the jury decides the facts and whether damages are due. Jury trials may take several days and litigation costs can be astronomical. Workers’ compensation disputes are resolved before a three-member panel selected from the Worker’s Compensation Board. The panel determines what the facts are after listening to the evidence and determines how the law is to be applied. Most hearings before the Worker’s Compensation Board take less than a day.
Evidence rules applicable to personal injury cases are very stringent. The evidence rules before the Worker’s Compensation Board are very lax. Evidence that might not be presented to a jury is frequently relied upon by the Worker’s Compensation Board; the board is allowed to decide what weight to give, if any, to all the evidence.
In a personal injury case, there is no payment to the injured person, not even for medical expenses, until the case is resolved. In a workers’ compensation case, frequently, some of the benefits are paid as the case is going along.
The insurance adjuster in a personal injury case only communicates with the plaintiff’s attorney through the defense attorney, once a lawsuit has been filed. From that point on, many of the litigation decisions are made by the insurance defense attorney. In a workers’ compensation case, the insurance adjuster manages the claims very closely, often making decisions without consulting with the workers’ compensation defense attorney.
When a personal injury and workers’ compensation case arise from the same facts, the injured worker can pursue both claims simultaneously. However, payments made by the workers’ compensation insurer will result in a “lien or claim” against the injured plaintiff’s personal injury damages. So, at the end of the personal injury case, the workers’ compensation insurance company is entitled to be reimbursed for expenses which it has paid in the workers’ compensation claim. There is no “double recovery”.
These are just a few of the many distinctions between personal injury cases and workers’ compensation cases. Examples of on-the-job injuries where a third-party lawsuit can possibly be filed are:
- Lawsuit against the manufacturer of a defective product, which causes an on-the-job injury. The injured employee can file for workers’ compensation benefits and also sue the manufacturer of the defective product.
- Lawsuit against a subcontractor on a construction job site for negligently injuring the employee. The injured worker can pursue a third party claim against another company working on the same job site if its employees caused his or her injury.
- Lawsuit against a driver responsible for a motor vehicle accident occurring while the employee is on the job.
So, if you have suffered a job site injury as a result of the negligence of a third party, you may have an on-the-job injury. You will likely need help dealing with these two separate claims and it is important to have an experienced attorney to evaluate the facts of your cases.