May 29, 2013
When an employee is injured on the job because someone other than a coworker or the employer was at fault, what rights does the injured person have? Must he/she pursue a personal injury claim based upon negligence and wait for a settlement of the claim before being able to pay medical bills? Or, can he/she file a workers compensation claim, receive temporary total disability payments and medical treatment, but nothing for pain and suffering and inadequate compensation for permanent impairment? Or, can he/she make a workers compensation claim as well as a personal injury claim and take home workers compensation benefits as well as personal injury damages? These are just a few of the very common questions that I answer for workers hurt on the job by negligent third-parties.
Workers Compensation vs Personal Injury
The workers compensation law is very specific with reference to benefits available. In order for an injured worker to recover “workers compensation benefits”, they must fit the specific criteria for awarding each specific benefit; if the worker or the workers injuries fail to match the benefit criteria, benefits are not paid. The money paid in workers compensation benefits is often substantially less than actual damages experienced. On the bright side, the workers compensation scheme provides for prompt and regular payment of the benefits which an injured worker qualifies to receive.
Under personal injury law, insurance companies for the person who caused the injury will not pay until the case is concluded and they have a signed release. This creates a financial crisis for a severely injured person. With no money to pay the mortgage or medical expenses many severely injured people are simply “starved out” by the insurance company for the at fault person. In addition, under the personal injury system the injured person’s own fault is considered in awarding damages; the damage award is reduced by the comparative negligence of the injured person. Fault is not a factor in workers compensation cases. However, unlike the workers compensation law, personal injury law is based on the premise that the injured person is to be “made whole”. Thus, at the end of the case, a severely injured person may be more adequately compensated under the personal injury scheme than the workers compensation scheme.
Some Straightforward Answers for Employees Hurt on the Job
So, what are the answers to the common questions raised by employees hurt on the job by a “third party”. The answers are pretty straightforward.
1. A worker injured on the job, even due to the negligence of a third party, is entitled to workers compensation benefits. If the worker must take time off from work to recover, temporary total disability (TTD) benefits are due as a wage substitute. Also, medical expenses will be paid by the employer’s workers compensation insurance company. Once the workers medical condition is determined to be “medically stable”, a permanent partial impairment rating may be in order. And, if the worker is not able to return to the job, reemployment benefits may be an option.
2. The injured worker can also file a lawsuit against the third-party to collect for personal injury damages; medical expenses, wage loss, permanent disability, physical and emotional pain and suffering and loss of consortium damages for a spouse or family member. However, the money which the worker received from workers compensation must be repaid to the employer’s insurance company. The insurance company has a lien against any recovery made by the injured worker against the negligent third-party. Any other result, would allow the injured person to be paid twice for the injuries; once through the workers compensation system and again through the personal injury litigation process.
The Third Party Claim
In some respects, an injured employee who also has a third-party claim, experiences the best of both systems. He/she can receive workers compensation benefits as they are needed (temporary total disability and medical benefits and reemployment benefits) rather than experienced financial devastation while recovering from the effects of the injuries and battling the insurance company for the third party. In addition, the injured employee can be “made whole”; awarded damages for pain and suffering and permanent disability and loss of consortium under the personal injury system. What the injured worker will not be able to do is collect and keep both workers compensation benefits and personal injury damages; double dipping is not allowed.
My office handles both workers compensation cases and personal injury and wrongful death cases. Thus, it is possible for us to help you pursue a workers compensation claim and litigate your personal injury claim at the same time.