Can I file a personal injury and workers comp claim?

by Kim
(Quincy, CA)

I have a Workers Comp Case in California. On 7/16/09 I was coming out of the bathroom and the door handle came off when I opened the door. I lost my balance and fell backwards onto a tile floor, flew across the floor into the toilet and hurt my back & shoulder.

I worked for 2 years with this injury and had a lot of pain & suffering. Finally on 8/22/11 I was released from work by my doctor and have been off since then. I called another attorney regarding a 3rd party liability claim and they said that the statue of limitations ran out one week before I called.

I have had an Agreed Medical Examination. I also had X-rays on 7/20/11 which show degenerative changes through the cervical spine and facets, and narrowing of the C56-6 and C6-7 disc spaces with spurring posteriorly at both levels, Foraminal encroachment C5-6 level. The MRI on 8/16/11 shows Prominent disc protrusion, spinal stenosis at C6-7 left & less prominent at C5-6 and C7-T1.

On 11/8/11 in a report written from the AME it was said that in regards to Labor Code 4663, "The patient has significant degenerative changes in the cervical spine & therefore the patient's disability in the cervical spine would be 70% related to the injury of 7/16/09 and 30% to pre-existing."

My doctor believes that this accident has caused these problems in my back. I had no problems until this happened to me. I am currently waiting for my permanent and stationery rating from the AME and then my workers comp attorney will start his work for my award, which will include future medical care and lost wages.

This building is only a couple of years old and several things have happened in this building. After I fell, I was told that the same thing happened to other people in the building. You'd think someone would have had all the door handles checked out in this building so the same thing would not happen again.

My Workers Comp attorney said there is no compensation provided within the California workers' compensation system for "pain and suffering".

Also I may have to pay workers comp back if I get an award. This makes no sense to me. I got hurt because of the door handle coming off their door. I have lost wages and suffered a lot of pain physically & mentally. Why should I have to pay them back?

Unfortunately I am going to have to retire as I can no longer do my job because of the pain caused by this accident. Would I be able to file for a personal injury settlement for pain & suffering based on negligence and how would I go about this? Thanks for any information you can give.

Visitor Question:
Disclaimer: Information provided in our response is NOT formal legal advice. It is generic legal information based on the very limited information provided. Under no circumstances should the information in our response, or anywhere else on this site be relied upon when deciding the proper course of a legal matter. Always get a formal case review from a licensed attorney.

ANSWER for "Can I file a personal injury and workers comp claim?":

Kim (Quincy, CA):

Unfortunately, our policy is not to interfere with the attorney-client relationship. To do so would be entirely inappropriate. We therefore suggest you contact your attorney and ask her for the answers to the questions you pose here.

We can tell you if you file a separate lawsuit against the door handle manufacturer, any funds paid to you by the workers' compensation insurance carrier will have to be reimbursed from the funds you receive from a personal injury settlement or jury award against the door handle companies.

The good news is, any amounts you might receive as a result of one or more separate lawsuits against the door handle manufacturers which are in excess of the funds paid to you by the workers' comp insurance carrier will be yours to keep.

It is also true that workers compensation insurance rules and regulations in the State of California, as in most other states, forbid the payment of monies for "Pain and Suffering" resulting from workplace accidents.

Since laws change frequently, and across jurisdictions, you should get a personalized case evaluation from an attorney licensed in your state (if you haven't already). Find an experienced local attorney to give you a free personal case review here.

Best of luck,

Judge Anthony

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