Should I File a Workers Comp or Personal Injury Claim?
Brian White | December 15, 2020 | Personal Injury
Most people do not expect to be hurt at work. But, in 2019, private industry employers reported 2.8 million nonfatal workplace injuries and illnesses.
There are risks for workplace injury in every job role. For workers in delivery roles, there’s always the possibility of a car accident. Restaurant workers are at increased risk for burns and sometimes suffer injuries after a slip-and-fall in a restaurant kitchen.
Most workers believe their only option after a workplace injury is to file a workers’ compensation claim. In some situations, a worker may also have a right to a personal injury claim for a work accident.
Whether to file a workers’ compensation or personal injury claim depends on the facts of your case.
An employer may be liable when an employee suffers a workplace injury. Workplace injuries are those that happen on-site or off-site when an employee is performing job duties. To encourage workers to make rightful claims and to limit employer liability, lawmakers created the workers’ compensation system.
There are several potential benefits to filing a workers’ compensation claim. If an employer chooses to subscribe to a workers’ compensation insurance plan, injured employees have rights and responsibilities under the system. An attorney can help you better understand how these might apply to your case.
The employee isn’t required to prove fault in a workers’ compensation claim. Workers’ comp covers injuries even when an employee is at fault. If an employee is partially or fully at fault for their injury, they can still recover workers’ compensation.
Workers’ compensation pays for medical expenses and lost wages due to the injury. Medical expenses must be documented and include transportation expenses to and from medical treatment appointments. Payments start relatively quickly since there’s no need to investigate who is at fault.
Employees can continue to work and receive workers’ comp. While workers’ compensation pays for medical expenses and lost wages due to the injury, a claimant can continue to work, under certain circumstances, while receiving workers’ comp benefits.
But a workers’ compensation claim is not always the only or even the best option. Employees who file a workers’ compensation claim give up their right to seek personal injury compensation.
In most states, employers are required to participate in the workers’ compensation system. However, Texas law allows employers to opt-out of workers’ compensation coverage. If your employer opted out of coverage, you may need to file a workers non-subscriber lawsuit.
Personal Injury Claims
When an employee has a personal injury claim, they may be entitled to more compensation than workers’ comp provides.
Workers’ comp covers financial damages, but it does not cover non-economic damages such as:
One well-known category of non-economic damages is the loss of consortium or the decrease in the quality of a person’s life and relationships due to the injury’s lasting effects.
Personal injury claims also permit punitive damages, under certain circumstances. The purpose of punitive awards is to punish for behavior that is malicious or grossly negligent.
Unlike workers’ compensation, simply suffering an injury on the job does not entitle an employee to personal injury compensation.
There are 4 key elements to a successful personal injury claim:
- You were owed a duty of care
- The duty of care was breached
- Breach of the duty caused the injury
- You suffered damages as a result of the injury
An experienced personal injury attorney can explain your employer’s duty of care, whether it was breached, and whether your personal injury claim is likely to be successful.