Can I have a workers’ compensation and personal injury claim?


By Jason Weinstock on November 22, 2019

Just because you have a workers’ compensation claim does not mean you cannot also sue the person that caused your injury! However, if the person that caused your injury was an employee or due to the negligence of your employer, you are stuck with just a workers’ compensation claim.

What are examples of when I can have both a workers’ compensation claim and a personal injury claim?

Sometimes, a work injury may be the result of a car accident or busted piece of equipment. In these cases you may also a personal injury claim. If you are a runner for a law office and rear-ended by a FedEx truck, while making a delivery, you may be able to pursue both a workers’ compensation claim, with your employer, and a personal injury claim, against the FedEx driver. If you are a construction worker and you are tasked with installing windows, while you hang from the roof by a harness, and the harness breaks, you may have a workers’ compensation claim and a personal injury claim against the company who made the harness. An experienced attorney may be needed to investigate the possibility of third-party actions, and I advise an injured worker to have an attorney review for all possible avenues for recovery.

What are the differences in a workers’ compensation claim and a personal injury claim?

There are many differences in the two types of claims, however, they can be broken up into two categories…benefits and recovery. In a workers’ compensation claim you may be entitled to benefits that you can’t receive if filing just a personal injury claim. These benefits can include: vocational rehabilitation, temporary total and temporary partial disability, re-opening rights, permanent partial disability, mileage reimbursement, covered medical treatment, and more. In a personal injury claim, your benefits are more limited to reimbursement/payment of medical costs. Personal injury claims attempt to make up for the lack of benefits that workers’ compensation claims offer by allowing an injured party to sue/recover for lost wages and pain and suffering. It is important to remember, however, that benefits like temporary total disability are very similar to recovery for lost wages. An experienced workers’ compensation attorney would be able to best explain the similarities. It is also important to pursue both claims if your case permits. This allows for the injured party to maximize benefits and recovery.

What happens if I have both a workers’ compensation claim and a personal injury claim?

If you have both claims, it is important that you treat under the workers’ compensation claim, until you are better, rather than under the personal injury claim. The reason for this is that workers’ comp will pay your doctors without you having to sign a lien. Because pain and suffering settlements are largely determined by how much medical benefits you received, it is important to first finish your medical treatment before settling a personal injury claim. Additionally, when smaller policy limits are involved on the personal injury side there may not be enough to cover both pain and suffering and medical treatment. Workers’ compensation insurance companies will be able to seek reimbursement for benefits they have paid if those benefits are the same. Workers’ comp does not pay pain and suffering benefits, so although they can receive a portion of the personal injury settlement to reimburse medical benefits or lost wages they can’t be reimbursed from the portion you received for pain and suffering.

When an injury involves both a workers’ compensation claim and a personal injury claim things can get complicated. Meeting with an experienced attorney is recommended to ensure your claims proceed properly.

Give me a call or send an email for a free consultation if you have questions or concerns about your workers’ compensation claim or if you have both a claim for workers’ compensation and personal injury.

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