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In today’s blog I will share some thoughts about workers’ compensation, and what it means for your personal injury claim. I am often asked a lot of questions about whether someone can file a personal injury claim for the same injury as a worker’s compensation claim. This is a complex issue, and this is just a primer, but I will cover the basics of personal injury claims while on workers compensation.

First, let me discuss what worker’s compensation is, and how it works.

What is Workers’ Compensation?

Workers’ compensation is a state-by-state insurance program that pays for medical care, and a portion of your lost wages if you’re hurt on the job. There are some other benefits, but those are the main ones. 

However, workers’ compensation doesn’t provide anything for the human losses after an injury. Things that don’t show up on a balance sheet, like pain, suffering, inconvenience, and loss of enjoyment of life. Those are very real harms that are left unaccounted for by workers compensation insurance.

Can I file an Accident claim while on Workers Compensation?

If you are covered by workers’ compensation, you can’t bring a personal injury claim or even an insurance claim for negligence on the part of your employer, except in very limited circumstances. That means, if your boss or a co-worker’s negligence caused your injury, you are barred from asserting a personal injury claim.

There are some common scenarios where that exclusion doesn’t apply. 

Are you an employee or contractor?

First, you actually have to be an employee to be covered by workers’ compensation. That means, if you’re an independent contractor, and don’t have workers’ compensation coverage,  you have the freedom to make an injury claim. Now, that’s an important one to pay attention to, because many people think of themselves as being employed, but they’re really only on the books as independent contractors. 

There are pluses and minuses to both being an employee and being a contractor that we won’t get into here. But in this particular case, the plus is that if you’re an independent contractor, there’s no restriction on your right to bring a personal injury claim against the person or business that caused you injury. 

Who is at fault for the accident?

Second, you’ll want to consider who caused your injury. If you’re on the job and you’re hurt, and your injury was caused by a person or business other than your employer, you can get workers’ compensation benefits, and still have the right to bring a personal injury claim. 

The most common way we see this situation is if somebody is on the clock and they’re driving and they’re injured in a car crash with a third party, in that case, they’d get both workers’ compensation and could bring a claim against the person that caused the crash. 

Another common situation is if somebody’s at work, but they’re on a job site other than their employer’s. For instance, if you’re a driver and you’re delivering takeout for a restaurant and fall through a broken stairway. In that case, you could get workers’ compensation and still bring a claim against the person or business who was responsible for maintaining that stairway. 

Do I have to repay workers’ compensation if I win an accident settlement?

Yes, if you receive both workers’ compensation and have a personal injury claim for the same injury, you are going to have to pay back workers’ compensation at the end of your case if you get a settlement or a jury verdict in your favor. 

That’s what’s called the workers’ compensation lien

Is it worth filing a personal injury claim while on worker’s comp?

Now, depending on how much insurance is available in the personal injury case, it may not be worth your while to bring a third party claim at all against the person who caused you harm. And that’s because the workers’ compensation lien may eat up most or all of that settlement. What you really don’t want to do is spend a year or more of your life fighting a personal injury claim only to see everybody get paid at the end, except for you. With the help of a lawyer though, you may be able to negotiate the lien amount or percentage in advance, so everyone gets paid at the end – including you!

Summary: Worker’s Compensation and personal injury claims 

This has been just a brief overview, and there’s lots more that can be said about workers’ compensation and personal injury claims. So give us a call if you’d like to talk about it. In the meantime, your takeaways are these:

  • If you’re injured on the job and you get workers’ compensation, you probably don’t have a personal injury claim against your employer, but that doesn’t apply to independent contractors. 
  • You can still have a personal injury claim after a car accident or some other kind of injury, even if you get workers’ compensation, but you have to bring that claim against someone other than your employer. And finally, 
  • If you do get workers’ compensation and you bring a personal injury claim, you’re going to have to pay back workers’ compensation benefits if you get a settlement or a verdict in your favor.

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