Your employer’s workers’ comp insurance does cover the injuries you receive on the job. However, in some situations, you may want to file a personal injury suit instead – or in addition to – of a worker’s comp claim.
When you have been hurt on the job, many questions can arise. Should I file for workers’ compensation? Should I find a personal injury attorney? Can I file for workers’ comp and initiate a personal injury claim as well? What are the differences between the two? Which path will get me the compensation that I need to continue to pay my bills while I recover?
If you’ve been injured on the job, you likely have these questions and many more circulating through your head. You may not know which direction to take. So let’s take a look at what workers’ comp does and doesn’t do, and then compare it to personal injury claims to help clear up some confusion.
What Is Workers’ Comp Exactly?
Workers’ compensation is essentially an insurance plan. It is purchased by employers for the purpose of covering any injury claims filed by employees for injuries sustained on the job. It is important to note that these are claims, not lawsuits.
So if you are hurt on the job, you can file a claim against your employer’s workers’ comp insurance company. The types of compensation you can get include medical expenses, lost income if you cannot work for a period of time, and limited economic damages that you have incurred as a result of your injury. Notice the use of the words “tangible” and “economic” here as they have important implications that we’ll cover in a moment.
What Is A Personal Injury Claim, and How Does It Differ from Workers’ Comp?
The first and most obvious difference is that workers’ comp injuries must happen while at work, or in the completion of your work duties, whereas personal injury cases can happen anywhere, including at work. So how do you know which to file, and what are the differences?
It all boils down to three considerations:
- Do I have to prove fault?
- How fast will I get my money?
- Which route will get me more compensation for my injuries?
It All Boils Down to Fault
The biggest and most essential difference between a workers’ comp claim and a personal injury claim can be summed up in a single word. Fault.
With workers’ compensation, there is never any need to prove fault or negligence of any kind. Blame does not factor into the equation at all. You were working for a company that carries workers’ comp insurance. You got injured on the job. That is all that is necessary to get workers’ compensation. But bear in mind that under personal injury, as long as the employer has workers’ compensation insurance coverage in place, you cannot then turn around and sue your employer under personal injury for your injuries.
By comparison, a personal injury claim is a good bit more complicated. In order to win a personal injury claim or lawsuit, the plaintiff (you) must be able to prove negligence on the part of the defendant. In other words, someone must be to blame and you must be able to show it.
How Fast Will I Get My Money?
With workers’ comp, you can usually get your money far faster than you could through a personal injury claim. Because there is no need to prove who was responsible for your injuries, the process moves along faster. You can typically begin receiving compensation while you are recovering, and you may never have to pay any out-of-pocket expenses for medical bills because this plan will cover them throughout your treatment period.
With a personal injury claim, it can be much different. Take the typical car accident scenario. A claim must be filed with both drivers’ insurance companies. The insurance companies will try to assess blame and one company will make an offer to the injured party who was not at fault – or who was less at fault. But chances are that the offer that was made was a low-ball offer that is far less than your claim is worth. Your attorney will make a far more accurate assessment of what your claim is actually worth and go to work to fight for every dollar that you deserve. This fight can take weeks, months, or even years depending on the complexity of your case.
So while you may end up with more money after your personal injury claim is settled or won in court, it takes a longer time to get there.
Which Route Will Get Me More Compensation for My Injuries?
Here is the rub. Even though you get your money faster through workers’ compensation, you typically get less money overall than you could in a personal injury claim.
Workers’ comp will only compensate you for your tangible, economic losses. Remember those words from earlier in the post? They are important because when you are compensated only for tangible losses, there may be losses that you incur that cannot be recovered. And those losses can add up over time.
With personal injury claims, you are able to recover for all of your losses, be they tangible or intangible – economic or non-economic. Typically this means more money in your bank account after all is said and done.
Economic vs. Non-Economic Losses Explained
So what is the difference between these two types of losses?
Economic losses are those that can be easily calculated because they are tangible, measurable, and objectively verifiable through receipts or other records. Think of them as out-of-pocket expenses. These can be:
- Medical bills,
- Therapy costs,
- Loss of income,
- Loss of business opportunities, or
- Even damage to property, in some cases.
Non-economic losses are less tangible. They are more difficult to ascertain because they are not really measurable, and cannot be calculated by adding up bills and receipts. Examples would be:
- Emotional distress,
- Pain and suffering,
- Loss of future income or earning capacity,
- Future medical expenses,
- Disability or disfigurement,
- Loss of companionship, and
- Loss of enjoyment of life.
These are far less quantifiable damages that take an expert to properly assess, but they can be recovered under a personal injury claim and not under workers’ comp.
So to summarize:
- With workers’ comp, you don’t have to prove negligence, you get your money faster, but you may not receive all of the money that you would at the end of a personal injury suit.
- With a personal injury claim, you do have to prove negligence, which can take time, so you must wait longer to get your money. However, in the end, you will likely receive more for your injuries than you would under a workers’ comp claim.
So the next question that usually comes up is: Can I file for both a workers’ comp claim and a personal injury claim? The answer is “sometimes.” Only an expert can tell you if you have a case for both. This is possible in certain circumstances, like when a third party besides your employer is involved. For instance, if your employer rents their office building from a third party and your trip outside the office building or in a common area – this could be a possible claim that you could file against the landlord. In such a situation, you could get workers’ comp from your employer’s insurance while simultaneously initiating a personal injury claim against the culpable third party.
This also holds true with defective equipment. If the equipment you are using on the job was manufactured by company X and was the cause of your injuries, you can get workers’ comp while suing company X for any malfunctioning equipment. In the end, this could provide compensation for some of your intangible losses that were not collectible under workers’ comp.
Contact an Experienced Workers’ Comp Attorney to Discover Your Options
Each case is fact-specific and needs to be assessed by an experienced attorney before you can be certain of your options. The attorneys at the Law Offices of David M. Benenfeld P.A have the experience that you need to get the compensation that your injuries deserve. Call our office today, or contact us online to schedule your free case evaluation today.