Do I File a Workers Comp or Personal Injury Claim if I Got Hurt at Work?

 

Understand the Differences Between Tort Law and Workers Compensation and Which Option is Right for Your Situation

 

The goal of litigation after a work injury is to get as much money as possible to pay for medical expenses, cover lost income, and compensate for permanent partial disability.

 

But determining what laws are available to obtain compensation and benefits for a work-related injury can be difficult.

 

Both tort law and workers compensation provide remedies to injured persons.

 

However, the similarities end there.

 

Sometimes your legal remedies are limited to filing a workers comp claim.

 

But other times, you can simultaneously pursue a workers comp claim and file a civil action for personal injuries (called a third-party claim) against another party.

 

This article compares and contrasts workers compensation with tort law, the statutes and case law governing motor vehicle crash claims based on negligence.

 

Understanding the differences between workers comp and personal injury claims and how they overlap can help you recover all the damages available after an occupational accident.

 

Read on to learn more.

 

And contact us if you have questions about workers comp law.

 

Our firm has secured victory at trial and negotiated settlements for hundreds of injured workers and auto accident victims.

 

And we want to do the same for you and your family.

 

 

The Test of Liability: Arising from the Employment vs. Fault

 

Workers compensation and tort law use different tests to determine if a party is liable to another for benefits or damages resulting from personal injuries.

 

The difference in these tests explains why it is usually easier to receive workers comp than to win an auto accident case.

 

The right to workers comp benefits depends on the answer to this question: Did you suffer a personal injury by accident arising out of and in the course of your employment or an occupational? 

 

Negligence and fault do not matter in workers compensation – not for liability and not for the amount of the award. 

 

You could receive compensation even if your clumsiness caused the accident and injuries. 

 

Similarly, you would receive the same compensation if your employer acted reasonably and did everything possible to provide a safe work environment or if it failed to clean up unsafe working conditions, causing your injury.

 

Blame does not matter. 

 

In contrast, under standard tort law, you cannot recover damages for personal injuries unless you prove the other party was at fault for the accident or injuries. 

 

To prove the other party’s liability, you must present evidence showing that: 

 

• • The defendant (either a person, business, or government entity) owed a duty of care to others (including you),

 

• • The defendant’s acts or omissions breached the duty of care because the defendant did not act as a reasonable person would in a similar situation,

 

• • The breach caused you harm, and

 

• • You suffered damages because of the injury. 

 

Further, some states (including Virginia) bar an injured person from recovering money damages if their acts contributed to the accident or injuries. This doctrine is called the contributory negligence rule.

 

Different Sources of Laws

 

Personal injury and workers compensation claims use different statutes, case law, and civil procedural and evidence rules.

 

For example, a claim for workers compensation in Virginia is governed by:

 

• • The Workers Compensation Act

 

• • The Rules of the Workers Compensation Commission

 

• • Case law from the Supreme Court of Virginia, the Court of Appeals of Virginia, and the Workers Compensation Commission interpreting the Workers Compensation Act and the Commission’s Rules

 

Typically, workers comp proceedings enjoy relaxed civil procedure and evidence rules.

 

In contrast, a civil action for injuries arising from a car wreck filed in state court is governed by:

 

• • Statutes found in Titles 8.01 and 46.2 of the Code of Virginia

 

• • The Rules of the Supreme Court of Virginia

 

• • Case law from the Supreme Court of Virginia and the circuit courts

 

These sources of law have some overlap, but there are key differences that a lawyer must know.

 

Different Social Aims

 

Workers compensation and tort law have different societal purposes.

 

Workers comp aims to provide compensation and medical treatment to victims of injuries resulting from the hazards of employment.

 

However, workers comp’s purpose is limited to preventing a worker and their family from poverty, not making them whole for their past, present, and future losses.

 

In contrast, tort law aims to compensate victims by making them whole for injuries caused by a defendant’s conduct, deter persons from acting negligently or recklessly, and punish those whose conduct was egregious.

 

Different Persons Covered

 

Any person who suffers injury due to another person’s negligence can file a personal injury lawsuit.

 

In contrast, only employees can seek and obtain workers comp.

 

Indeed, independent contractors who receive most of their income from work done for a specific employer may be ineligible for workers comp unless the employer exercised significant control over how the contractor performed the work.

 

Different Notice Requirements and Methods for Starting the Claim

 

The steps to file a workers comp claim differ from the acts you must take to bring a civil action for personal injuries. 

 

State workers comp laws have notice requirements. 

 

For example, in Virginia, you must give your employer notice of the work-related accident within 30 days of the date of the accident. 

 

Failure to give timely notice may bar you from receiving benefits even if your claim is otherwise valid. 

 

You should provide information about the accident and injury in writing (use this sample work injury report) to avoid the employer arguing it did not know about the incident. 

 

In addition to giving your employer notice of the work injury, you must also file a claim with the Workers Compensation Commission within the applicable statute of limitations (two years in Virginia). 

 

In contrast, personal injury claims do not have notice requirements unless you seek damages from a governmental entity. 

 

Though you can notify the at-fault party’s insurer before filing a complaint, you do not have to. 

 

Instead, you can file a lawsuit in the appropriate court and serve the defendant with a copy of the pleading without speaking with the opposing party. 

 

Different Defenses Available

 

Workers comp eliminates the employer’s use of several defenses available in personal injury claims brought under tort law.

 

For example, the employer (or its insurer or claim administrator such as Sedgwick) cannot avoid paying benefits for work injuries by arguing contributory negligence, the assumption of risk doctrine, or the fellow-servant rule.

 

In exchange, employers receive protection from common-law liability in tort and large jury verdicts that may bankrupt the employer.

 

Differences in Who Decides the Claim: Deputy Commissioner (Administrative Law Judge) vs. Judge or Jury

 

In many states (including Virginia), hearing officers with specialized administrative agencies take evidence and adjudicate work injury claims.

 

For example, deputy commissioners, many of whom are former claimants’ or insurance defense attorneys, resolve workers comp disputes in Virginia.

 

These deputy commissioners serve a role similar to a civil or criminal court trial judge.

 

In contrast, an accident victim with a claim in civil court can ask for a jury trial.

 

The jury serves as a fact finder, resolving evidentiary disputes and determining liability and damages.

 

Differences in Choosing Doctors and Paying for Medical Treatment

 

In many state workers comp systems, employers and insurance companies exercise much control over an injured worker’s medical treatment.

 

For example, in Virginia, your employer must provide a panel of physicians (a list) after an industrial accident or the diagnosis of an occupational illness.

 

But the panel does not have to list more than three physicians.

 

As long as your treatment with the panel physician or someone in that doctor’s referral chain is reasonable, necessary, and causally related to the occupational accident, the employer or insurer must pay for it.

 

But if you seek medical attention from a health care provider not listed on the panel or different from who the treating physician refers you to, the employer may not have to pay for that treatment, sticking you with the bill.

 

Further, the employer or insurer may hire a nurse case manager to attend appointments or speak with your doctor.

 

Some nurse case managers and claim adjusters put significant pressure on health care providers to release injured workers to light duty as soon as possible, impacting the claim’s value.

 

In contrast, defendants and insurers cannot exercise this level of control in personal injury cases.

 

Indeed, you can choose your treating physician and change doctors as often as you want (though “doctor shopping” without a legitimate reason may weaken your case during mediation or trial).

 

But this comes at a cost, particularly if you do not have private health insurance, Med Pay, Medicare, Medicaid, Tricare, or medical benefits coverage through the Veterans Administration (VA). The defendant driver and their auto liability insurer do not have to front medical expenses.

 

Therefore, getting adequate treatment after a car accident can be difficult and costly if you do not have insurance.

 

Different Damages and Amounts of Compensation Available

 

Presuming you will not have a problem proving liability or collecting a judgment, personal injury cases are often worth more than workers comp claims. 

 

Many reasons explain the higher settlements and verdicts in civil actions for personal injuries. But the most likely explanation is the difference in types of damages available between personal injury and workers comp claims. 

 

Not having to prove negligence has its drawbacks. Because they gave up certain defenses to claims, employers and insurance carriers could get procedural safeguards written into the law that reduce the value of a workers comp claim. 

 

Generally, workers comp benefits are limited to payments for wage loss when incurred, compensation for permanent impairment to the injured body part, and hospital, medical, and rehabilitation services. 

 

Under workers comp, you cannot receive money for damages for pain and suffering or diminished quality of life.

 

Settlements are voluntary, with no guarantee that you will receive a lump sum. 

 

In addition, wage loss payments will not exceed two-thirds of your average weekly wage, with high-wage earners capped by arbitrary maximum compensation rates. 

 

Further, state workers comp systems often cap the number of weeks of benefits you can receive, regardless of whether you have reached maximum medical improvement or have permanent work restrictions when the weeks run out. 

 

In contrast, you can recover compensatory and punitive damages in a personal injury lawsuit. 

 

Compensatory damages cover actual losses resulting from another’s negligence.

 

These damages include:

 

• • Past medical expenses

 

• • Projected future medical expenses

 

• • Wage loss

 

• • Diminished earning capacity

 

• • Emotional distress (physical pain and suffering, insult, humiliation, inconvenience)

 

• • Permanent disability including scarring and disfigurement

 

• • Property damage

 

The value of compensatory damages in a personal injury claim depends on:

 

• • The nature and extent of the injury

 

• • The length of medical treatment

 

• • The amount of time missed from work.

 

• • Past medical bills

 

• • Projected future medical expenses

 

• • Testimony regarding loss of earning capacity.

 

Compensatory damages should make you whole, with no limits on how much the court may award. 

 

Punitive damages punish the wrongdoer for their conduct and deter others from acting similarly. 

 

In Virginia, there is a cap on punitive damages. An injured person can receive up to $350,000.00 in punitive damages.

 

Different Injuries Compensated

 

Generally, workers compensation only provides money if the injury results in disability from work or permanent impairment.

 

Otherwise, you can only receive payment for medical expenses.

 

Also, workers comp excludes many psychiatric injuries.

 

So, while you can potentially recover compensation for disability from Post-Traumatic Stress Disorder (PTSD), depression, or anxiety in some situations, proving entitlement to workers comp for these conditions is difficult.

 

In addition, you cannot receive workers comp for work-related stress (such as a hostile work environment) or defamation by the employer, a supervisor, or a co-worker.

 

Further, workers comp excludes repetitive motion injuries in Virginia.

 

For example, you might be able to prove that lifting hundreds of items when working at an Amazon warehouse caused your herniated disc and the need for a lumbar spine fusion. But the law precludes you from receiving workers comp for this injury unless you identify a specific incident as the cause.

 

In contrast, you can file a personal injury lawsuit for injuries that do not cause disability from work but affect your quality of life.

 

The Role of Insurance

 

Insurance has a significant role in recovering compensation for personal injuries at work.

 

Most employers in Virginia (those with three or more employees) must purchase workers compensation from companies such as Travelers, The Hartford, Liberty Mutual, or self-insure.

 

This insurance coverage pays the benefits awarded to injured workers.

 

And if the employer failed to cover this risk despite being required to by the law, the Uninsured Employers’ Fund (UEF) will pay the award.

 

Workers comp insurance is compulsory or semi-compulsory in most other states.

 

In contrast, not all states require persons to have liability insurance for auto accidents or renters’ or homeowners’ insurance for injuries on-premises.

 

Or, if the states do have such laws, the mandatory insurance coverage may not be enough to cover all the victim’s damages and make them whole.

 

Therefore, the amount of insurance coverage available often dictates the settlement value of a car accident. Indeed, you might be in a better position to accept a policy limits settlement instead of going to trial and getting a more considerable judgment you cannot collect from the defendant.

 

Different Times to Trial

 

Some workers comp and personal injury disputes resolve quickly through award letters, stipulations, or releases.

 

But if the litigants disagree on liability, coverage, or claim value, a trial (called a hearing in workers comp) will be necessary.

 

You will get a trial date in workers comp much quicker than you will get a trial in your civil action for injuries.

 

For example, the Virginia Workers Compensation Commission often schedules claims for hearing within three to five months of the date the claim is filed.

 

In contrast, it can take one year (or longer) to get a trial date in civil court.

 

Finality after Trial

 

The losing party in workers comp and personal injury cases have the right to appeal to an upper-level court.

 

But generally, a personal injury lawsuit is over after the judge or jury renders a verdict.

 

In contrast, winning a workers comp hearing is usually the beginning of your case because the system is “pay-as-you-go.”

 

The administrative agencies adjudicating workers comp claims do not have the power to render a verdict equal to what the deputy commissioners think the case is worth.

 

Instead, workers comp decisions are limited to rulings on specific benefits sought (and a lump sum verdict is not one of the benefits available by law).

 

Therefore, a favorable decision usually means the start of workers comp payments, which may result in disputes over medical treatment and the extent of permanent disability in the future.

 

Differences in Attorney Fees

 

Attorneys are more willing to accept representation in personal injury cases than workers comp claims. 

 

A significant reason is the fee structure. 

 

Generally, both personal injury lawyers and workers comp attorneys charge a contingency fee. 

 

Contingency representation means the attorney’s fee equals a percentage of your total recovery. Therefore, the higher your settlement or verdict, the greater the attorney’s fee. 

 

The administrative agency overseeing the system must approve the attorney fees in workers comp. And in general, the awarded fee cannot exceed 15 to 20 percent of the benefit or settlement value. You can learn more about workers comp retainer agreements here.

 

In contrast, the standard contingency fee in personal injury cases is greater than the typical fee in workers compensation.

 

The standard fee in an auto accident claim is 33 percent of the settlement value if the claim resolves before filing a lawsuit and 40 percent of the settlement or verdict after the attorney files the complaint and serves it on the defendant.

 

Differences in Award Ownership and Survivorship Rights

 

In most cases, the benefits granted by the workers comp award end if the injured worker passes away.

 

Exceptions exist.

 

But the injured worker’s heir must prove other things to receive additional benefits through workers comp.

 

For example, to receive workers comp death benefits, the heir must show that the injured worker’s death resulted from the compensable injury and that the heir was financially dependent on the deceased.

 

In contrast, a personal injury award (verdict or settlement) survives the injured person’s death and passes to their estate for distribution.

 

Differences in Subrogation

 

Workers comp awards (including settlements) are exempt from creditors’ claims, except for child support enforcement orders.

 

Though health insurance or medical providers may claim a right to reimbursement (subrogation), these entities cannot place a formal lien on your workers compensation case.

 

In contrast, doctors, hospitals, and insurers have a lien against personal injury case proceeds, subject to statutes and case law.

 

What are the Situations When I Can File a Personal Injury Lawsuit and Submit a Workers Comp Claim? 

 

Workers comp is the exclusive remedy for work-connected injuries for many of you. 

 

You will be limited to seeking and receiving workers compensation benefits. 

 

And opting out of workers comp to file a civil action for injuries is not an option under existing law. 

 

However, some situations are exceptions to this rule, permitting you to file a personal injury lawsuit for a work-connected injury. 

 

For example, you can prosecute a personal injury case against a third party if that party’s negligence resulted in your injuries.

 

Common situations where a personal injury claim is available in addition to workers comp include: 

 

• •  Injury resulting from an auto accident that occurred when you were driving for work. Here, you can sue the at-fault driver in tort. 

 

• • Injuries caused by a defective product, such as a faulty machine that crushed your hand and fingers

 

• • Injury involving a defective medical device or dangerous prescription drug

 

• • Injury resulting from the negligent acts of a subcontractor on a construction site, such as a forklift driver dropping a pallet on you, causing traumatic brain injury and a spinal cord injury

 

• • Injury due to a slip and fall at a customer’s premises. Here, you can sue the property owner for negligence. 

 

High-Quality Legal Representation for Persons Injured in the Workplace or Due to the Negligence of Others

 

Our firm tirelessly pursues claims for injured workers and auto accident victims.

 

We will investigate the facts and develop the evidence during pretrial discovery, so you can seek compensation from every option, including workers comp, personal injury, Social Security disability, and Long-Term disability. And we will educate you about your rights throughout the process.

 

Call our office or complete the online form to see why thousands of injured workers and crash victims have turned to us for help.