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Sunrise Workers' Compensation Lawyer > Blog > Personal Injury > Should I File a Workers’ Comp and Personal Injury Claim?

Should I File a Workers’ Comp and Personal Injury Claim?

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When you’ve been injured at work, you may have many questions regarding how to go about the business of healing while not losing your job or too much time from work. In this scenario, there are two types of claims that have the potential to help you: a workers’ compensation claim and/or a personal injury claim. So let’s start our discussion with some basics of workers’ comp.

Basics of Workers’ Compensation

When people get injured at work, the first thing that comes to mind is filing for workers’ compensation. And there is a good reason for that as workers’ compensation is the fastest way to get money for your injuries – sometimes within a matter of days. By comparison, a personal injury claim can take months or even years.

But what exactly is workers’ compensation?

Workers’ compensation is essentially insurance that employers purchase and have in place in the event that one of their employees gets hurt on the job. For the employer, carrying workers’ compensation insurance is a trade-off. Their insurance will cover basic expenses for any and all employees who’ve been hurt on the job (regardless of employer fault and even regardless of the employee’s fault), so they end up paying whether or not an incident was the fault of the employer or the employee. However, the upside for the employer  is that carrying workers’ compensation insulates the employer from having to deal with time-consuming and more expensive personal injury lawsuits

Workers’ Compensation Is Fast and Easy

One of the reasons that you receive workers’ compensation money so much faster than personal injury money is that there is a large hurdle to overcome in order to win a personal injury claim. And that hurdle is the need to prove fault.

Conversely, there is no need to prove fault or negligence of any kind in a workers’ compensation claim. The only elements required for workers’ compensation are:

  • Your employer carries workers’ compensation insurance,
  • You got injured, and 
  • You were working or in the performance of your duties to your employer when you got injured.

This plan was designed to be a simple, straightforward way for injured workers to get the money they need to get back on their feet and hopefully back to work as quickly as possible. If workers’ compensation did not exist, employees would have no choice but to have to prove fault in a personal injury lawsuit against their employer. The need to prove fault brings this streamlined approach to a screeching halt, leaving plaintiffs sitting on their hands for months or years waiting for their case to settle.

So What’s the Catch?

At this point, you may be wondering if there is a catch to the streamlined approach of workers’ compensation. And while it isn’t really a “catch,” the truth is that workers’ compensation only pays for tangible, economic losses – whereas the plaintiff in a personal injury case can sue for both tangible, economic losses and intangible, non-economic losses like pain and suffering. Essentially, it boils down to this: you will get your money faster and easier in a workers’ compensation claim, but you will likely get less than you would in a successful personal injury claim.

Workers’ Compensation Pays Only Economic, Tangible Losses

Economic, tangible losses are those that can be easily quantified by looking at documents like receipts or bills. They include things like:

  • Medical bills;
  • Hospital bills; and
  • Lost wages during recovery.

Personal Injury Claims Can Pay Both Economic and Non-Economic Losses

Conversely, in a personal injury claim, you can request the above losses plus your less tangible, non-economic losses. As you can likely guess, these are losses that are trickier to quantify because the amounts cannot be arrived at by simply looking at a document. These are losses that must be assessed by experts because they actually involve projections far into the future. They include things like:

  • Pain and Suffering;
  • Loss of Consortium;
  • Future Lost Earnings;
  • Future Lost Earning Potential; and
  • Future Medical Costs

Can I File a Personal Injury Claim as Well as a Workers’ Compensation Claim?

When you are injured as an employee, you must file for workers’ compensation against your employer. As long as they carry the insurance, you must go through workers’ compensation. Once you do, you are essentially barred from going after your employer for personal injury as well. However, as with most things in law, there are exceptions.

Intentional Harm

If you think that your employer harmed you intentionally, then you may be able to go forward with a personal injury lawsuit (on top of your workers’ compensation case), claiming that your employer committed an intentional tort. Of course, this intent must be proven during negotiations while attempting to reach a settlement – at least proven to the point where the other side wants to avoid trial. And if a settlement can’t be reached, the next step is to go to court and prove intentional misconduct to a judge or jury. But this is one situation where you can initiate a suit against your employer even after you have accepted workers’ compensation benefits from them.

Third-Party Tortfeasor

Another situation where you can bring a personal injury suit in addition to your workers’ compensation claim is when there is a third party (i.e., someone other than your employer) who contributed in some way to your injuries.

For instance, if you are a driver for your company and the negligence of another driver caused your injuries while in the performance of your work duties, you could file a personal injury suit against the other driver as well as the workers’ compensation claim that you filed with your employer. If successful, this would enable you to collect money to compensate you for your intangible, non-economic losses through your third party suit.

Contact an Experienced Attorney to Discuss Your Options

These decisions can have life-long consequences for you and your family, so don’t leave it to chance. Contact the Law Offices of David M. Benenfeld P.A ., to speak with an experienced attorney who can help you sort through your options. Call our office today, or contact us online to schedule your free case evaluation today.

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