Learn the key differences between a personal injury and a workers’ compensation claim. Get the compensation you deserve for a work accident.
Most American employees are entitled to benefits for a qualified workplace injury through their employer’s workers’ comp insurance program.
There are some instances, such as car accidents, when a worker suffers an injury because a party other than the employer was negligent.
Workers’ compensation and personal injury claims involve different reporting requirements and separate claim procedures. To maximize your injury compensation, you’ll need to understand the differences between the two processes.
There are also some situations when you can recover under both a workers’ comp claim and a third-party lawsuit. We recommend you contact a workers’ compensation attorney to help protect your interests with both claims.
Get answers to the Top 20 Workers’ Comp Questions here.
Work-Related Injuries vs. Personal Injuries
The main differences between workers’ comp claims and personal injury claims for workplace accidents involve the topics of fault and damages.
Workers’ compensation is a no-fault insurance program. You don’t have to prove that your employer or a co-worker contributed to your work injury in any way.
In contrast, with a personal injury claim, you must prove a person or business was at fault for your accident. For example, you can allege a personal injury claim for a work accident if another company or subcontractor contributed to your accident.
In general, injured employees can prove third-party fault by providing evidence of negligence. Negligence means that a person or business failed to act reasonably under the circumstances.
The key elements of negligence are:
- Duty of care: The at-fault person or business had a duty of care to avoid causing harm to you and others.
- Breach of duty: The at-fault person breached their duty by doing something wrong or failing to do what any reasonable person would do in the same circumstances.
- Cause: The at-fault person’s breach of their duty of care is the proximate cause of your injuries.
- Damages: You have verifiable injuries, supported by medical bills, medical records, and evidence of emotional distress.
Compensable Damages in Workers Comp and Personal Injury Cases
Damages are the losses you suffer after an injury. You can seek compensation for more types of damages in a personal injury claim than you can with a workers’ comp claim.
Possible damages associated with a personal injury claim include:
- Medical expenses
- Lost wages
- Lost future earning capacity
- Property damage
- Pain and suffering
When you’re injured in the workplace and file a workers’ compensation claim, you’re normally limited to compensation for your medical expenses and reduced wages. A lump-sum disability benefit might be paid for a permanent impairment. In some situations, you may also receive vocational rehabilitation that will help you learn a new job.
Compensation for pain and suffering is not a part of workers’ compensation benefits.
This represents a significant loss since pain and suffering may include:
- Physical pain and discomfort
- Depression, anxiety, memory loss, insomnia, or other emotional disorders
- Physical limitations, including the inability to play with your children
- Loss of consortium (supportive relationship) with your family members
- Any other emotional or psychological trauma
Although the benefits available in workers’ comp cases may seem sparse, injured workers will receive their compensation quicker than if they filed a personal injury claim.
With workers’ comp, you’ll usually receive wage replacement benefits within a couple of weeks. However, it may take months or years for a personal injury claim to settle or go through the court system.
Reporting Work-Related Personal Injuries
Immediately following a sudden workplace injury, seek medical attention. This includes care from an emergency room, your primary care provider, or an urgent care clinic.
With your immediate medical needs met, notify your employer. Similarly, notify your employer as soon as you are diagnosed with an occupational disease or condition that developed over time.
With a workers’ comp claim you need to inform your employer about what took place and the injuries you suffered. This is one of the first critical steps in starting the workers’ comp process.
Employers will have different systems in place when it comes to reporting work injuries. For small employers, you can probably inform the owner of the company directly. With larger businesses, you’ll likely have to speak with a manager, foreman, or the human resources department.
Once you report your injury, the person or department will give you the forms you need to officially begin your workers’ comp claim. The forms depend on your state’s workers’ comp laws. However, most states require you to describe your injury/illness and the medical attention you received.
Return the completed workers’ comp claim forms promptly. A delay can cause your claim to be denied.
Reporting a Personal Injury Event
If your workplace injury involves a third party, you or your attorney must put the third party on notice of your intent to file an injury claim. Most third-party claims will be filed with the at-fault party’s liability insurance carrier.
Recall that an injured worker does not have to establish fault for a workers’ compensation claim. But personal injury claimants do, and they’ll need evidence to show that a person or entity caused their injuries.
If you don’t require immediate emergency medical care after your injury, try to collect evidence while still at the accident scene.
Evidence to help establish fault includes:
- Photos and videos of the accident scene
- Photos of your injuries
- Statements from witnesses
- Damaged shoes or clothing
- Weather reports if the weather somehow contributed to your accident
Filing a Claim for Your Injuries
Telling your boss about the injury is not the same as filing a workers’ comp claim. You must complete the required form. Your employer will then submit the form to its workers’ comp insurance company.
Some states also require an employer to submit your form to your state’s workers’ compensation board. Alternately, in some states, you can fill out the necessary form online and complete your claim electronically.
Once your claim is opened, the workers’ comp insurance company will request medical records from your healthcare providers to verify the extent of your injuries and medical treatment.
In some situations, an insurer will deny your workers’ compensation claim. Companies will typically deny a claim if your employer doesn’t believe your injury was work-related or if you’re not eligible for workers’ comp coverage.
Definition of Ineligible Employees
State workers’ compensation statutes prohibit specific employees from receiving workers’ comp insurance benefits.
Ineligible employees may include:
- Independent contractors
- Maritime employees
- Railroad employees
- Seasonal or casual workers
If your workers’ compensation claim is denied, the insurer should send you a letter indicating the specific reason for the denial. The letter should also explain how you can appeal the decision. You have the right to seek representation from a workers’ compensation attorney if you decide to appeal a claim denial.
If you have questions about a claim denial or the appeal process, you can visit your state’s workers’ compensation agency.
Injured employees who are eligible for their employer’s workers’ compensation program are not allowed to sue their employer for workplace injuries.
However, injured employees who are not eligible for workers’ comp have the right to file a personal injury claim or lawsuit against their employer, and seek full compensation for all their damages.
Negotiating a Personal Injury Claim with the Liability Carrier
Generally, personal injury claims are more involved than workers’ comp claims.
Soon after sending your notice letter to the at-fault party’s insurer, the company will assign a claims adjuster to your claim. If you’ve decided to handle your own injury claim, you’ll negotiate a settlement with the adjuster after you’ve recovered from your injuries.
Before negotiations begin, calculate the value of your injury claim. Personal injury compensation is largely based on your total economic damages, like medical bills and lost wages, with an amount added to account for your pain and suffering.
Once you calculate the value and gather your supporting documentation, prepare a demand letter to send to the adjuster. The demand letter sets forth the amount for which you believe your claim should settle.
You can expect to have a few rounds of offers and counteroffers before settling your personal injury claim.
If claim negotiations fail, you should discuss filing a personal injury lawsuit and other options with a local injury attorney.
Filing Workers’ Comp and Personal Injury Claims
There are times when workers can file both a workers’ comp claim and a personal injury claim. These situations arise when a worker gets injured at work, and the negligence of another party caused the injury.
Filing a Lawsuit Against Your Employer
The general rule in almost all states is that injured workers may not sue an employer, even in cases of employer negligence. Many states, though, carve out an exception to this rule and allow a worker to sue an employer if the employer’s actions were deliberate and certain to result in the employee’s injuries.
For example, a worker may file an injury suit against their employer if the employer deliberately exposed the worker to a harmful chemical or willfully failed to fix a highly dangerous condition.
Filing a Lawsuit Against a Third-Party
There are situations when a worker is injured because of some third party. If this occurs, the worker can usually file a lawsuit against the third party in addition to filing a workers’ comp claim.
Third parties involved in workplace injuries often include negligent drivers, dangerous dog owners, manufacturers of defective machinery, products or chemicals, and other dangers not caused by the employer.
Consider, for example, the situation where a company contracts with your employer to clean its office spaces. If this company uses some type of slippery floor wax, knowing that the wax can cause injury, then you could file a lawsuit against the company if you were injured in a slip and fall.
The cleaning company is a negligent third party, and you can file a legal claim against it in addition to a workers’ comp claim. If successful, you can recover compensation for damages that are not covered under the workers’ compensation system, such as pain and suffering.
Handling Subrogation Liens with a Third-Party Lawsuit
If you initiate a workers’ comp claim and also win a third-party lawsuit, you’ll need to watch out for a subrogation lien on your settlement. Workers’ compensation insurance companies have a right to seek reimbursement for the medical expenses and wage benefits paid on your behalf.
Most workers’ compensation laws say an insurer can only take a lien for about two-thirds of what they paid out in benefits.
Managing a workers’ compensation case along with a third-party personal injury claim can be complicated enough. Subrogation liens add another level of complexity to your injury claim.
We recommend injured workers ask for a free consultation with a workers’ compensation attorney or personal injury law firm early in the claims process.
Most states impose caps on attorney fees for workers’ comp cases. Personal injury lawyers typically work on a contingency fee basis. This means your lawyer only collects fees if they help you settle your claim or secure a favorable award in court.
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Visitor Questions on Personal Injury vs. Workers' Comp
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