Pursuing legal action after you’ve sustained an injury at work can feel daunting and intimidating, especially if you’re not feeling your best. If you find yourself in this situation and are confused about your options, this is a good place to start. Today, we will demystify the differences between a workers’ compensation and personal injury claim to help you toward the next right step.
What’s In a Name?
One of the primary differences between workers’ comp and personal injury claims may seem obvious: if you were injured while at work, then you can consider filing a workers’ comp claim. If you sustained an injury anywhere other than work, then you can consider filing a personal injury claim.
Fault: The Main Difference
Have you ever heard the phrase “at fault” in the context of legal issues? When a party is described as “at fault,” this means they are deemed responsible for an accident that occurred.
Who’s At Fault—Does It Matter?
- When filing a workers’ comp claim, it is not necessary to identify an at-fault party.
- A workers’ comp claim is not dependent on proving another party’s responsibility or negligence regarding your injury.
- When filing a personal injury claim, it is necessary to identify an at-fault party.
- In a personal injury claim, whether you receive compensation for your injury is dependent on proving another party’s responsibility or negligence regarding your injury.
If you’re interested in filing either a workers’ comp or personal injury claim, it’s advisable that you first consult with a skilled attorney who can help you understand your legal options given your individual circumstances.
Both workers’ comp and personal injury claims can be complex and offer different benefits; having a trusted legal advocate on your side will give you the confidence to move forward.
Who’s Paying?
The purpose of filing a workers’ compensation and a personal injury claim is similar in that both types of claims serve to award you just compensation in the form of financial assistance. But who’s paying?
- Workers’ Comp: When you file a workers’ comp claim, you are filing it against your employer’s workers’ compensation insurance policy. This is with the expectation that your employer’s workers’ compensation insurance company will be paying your compensation.
- Personal Injury: When you file a personal injury claim, you are filing it against the at-fault party’s insurance company.
What’s Covered?
As mentioned previously, workers’ comp and personal injury claims offer different benefits.
Workers’ Comp Benefits You’re Entitled To
- Medical costs you’ve incurred since being injured
- Future medical costs needed for the duration of your injury
- Wages you may have lost from needing to rest or attend medical appointments
- Travel-related expenses for medical appointments—if the distance is at least fifteen miles from your home or work
- Disability
- Temporary Partial Disability (TPD):You may be eligible to receive TPD benefits if you continue to work for your employer after your injury, but at a reduced number of hours or wage—specifically, two-thirds the difference between your regular and reduced wage, up to the maximum compensation rate.
- Temporary Total Disability (TTD): If you’re unable to work due to your injury for a time, you can receive a certain percentage of your average weekly wage—specifically, two-thirds of your average weekly wage, based on wages for 26 weeks preceding the injury.
- Permanent Partial Disability (PPD): You may be eligible to receive PPD benefits after a healthcare provider has determined that you’ve reached Maximum Medical Improvement (MMI)—compensation depends on your degree of impairment.
- MMI means your doctor has determined that you have reached a point in your recovery at which you are not expected to improve. The doctor will also issue an impairment rating denoting what sort of restrictions should be enforced for you at work in the future, based on the state of your injury.
- Permanent Total Disability (PTD): If you’re determined to have PTD, you can receive benefits for the rest of your life at the weekly compensation rate.
- PTD eligibility is based on certain types of injuries:
- Severe brain injury
- Permanent or total loss of both hands, both arms, both feet, both legs, or both eyes
- PTD eligibility is based on certain types of injuries:
Personal Injury Benefits You’re Entitled To
- Lost wages—When you file a personal injury claim, you can receive up to 100% of your lost wages
- Medical costs you’ve incurred since being injured
- Future medical costs needed for the duration of your injury
- Pain and suffering—In legal terms, this phrase encompasses the physical and emotional suffering you’ve endured since your injury
- Physical pain: The pain that results from some injuries can become chronic or long-lasting. Examples of injuries that may cause chronic pain include back and neck pain, nerve damage, headaches and migraines, broken or fractured bones, pulled or sprained muscles, dislocated joints, internal organ damage, paralysis, and traumatic brain injury (TBI).
- Emotional pain: The mental anguish you endure due to an injury is significant and should not be dismissed. Examples of emotional pain include psychological trauma, fear, worry, anger, grief, insomnia, frustration, loss or diminished quality of life, and post-traumatic stress disorder (PTSD).
- Punitive damages—These are a form of compensation awarded to the plaintiff (the injured party) as a form of punishment to the defendant (at-fault party). Punitive damages are awarded to set a public example and deter the defendant and others from similar conduct in the future.
- Loss of consortium—This refers to the loss of intimacy from interfamilial relationships, such as a husband making a personal injury claim for his wife’s death. The plaintiff (the husband) would receive damages (compensation) for the emotional distress he’s experienced since his wife’s death, if the defendant is proven to have caused her death by negligent conduct.
Comparing Workers’ Comp and Personal Injury
Objectively speaking, personal injury claims offer more benefits than workers’ comp claims. If you file a workers’ comp claim after sustaining an injury, you’re only eligible to receive a certain percentage of your wages. Conversely, if you file a personal injury claim after sustaining an injury, you’re eligible to receive up to 100% of your wages, as well as damages relating to various types of emotional distress you’ve endured since your accident.
Given their differences, filing a personal injury claim rather than a workers’ comp claim may sound desirable to you. Next, we will cover if you can file a personal injury claim for an on-the-job injury.
Which Do I File?
There are certain scenarios where you may be able to file a personal injury claim for an injury sustained on the job.
- You contracted an illness due to chemical exposure—your employer was aware of the issue but did nothing to rectify it.
- Your employer doesn’t have workers’ comp insurance (employers are required to by law)—you could file a lawsuit against them.
- Your employer attacks you.
- If you are injured in auto collision during work—say you were hit by another driver on your way from one jobsite to another—you might be able to sue the driver who hit you.
Are you confused about which route to take in pursuit of compensation? That’s understandable, as the process for filing both types of claims is complex.
Additionally, are you wondering if you can simultaneously file both a workers’ comp and personal injury claim for the same injury? An experienced attorney can answer all your questions and advise you on next steps.
What If My Claim Is Disputed?
Workers’ Comp
It’s possible that your employer might deny your workers’ compensation claim for various reasons. For instance, your employer could claim:
- Your injury is not covered by workers’ compensation.
- You waited too long to file the claim.
- You didn’t provide the documentation necessary to file the claim.
If your workers’ comp claim is denied, we can help you file to resubmit.
If resubmitting doesn’t solve the issue, then we would have to file an appeal within 10 days of being notified of your employer’s denial of your claim.
If Resubmitting Your Claim Fails
- Mediation: If you and your employee agree that you wish to avoid the court system, you can attempt to reach a settlement through mediation. During mediation, a mediator, or neutral third party, speaks with you and your employer to reach a settlement.
- Hearing: Another option is to request a hearing (trial) before a judge; in this situation, you would need the legal representation of an attorney. A hearing might be the best route to take if you and your employer hold considerable animosity toward one another.
Personal Injury
It’s possible that the defendant’s insurance company might deny your personal injury claim for various reasons. For instance, they could claim:
- Your injury is excluded from their policy.
- The defendant didn’t renew their coverage and was uninsured when you were injured.
- The claim was submitted incorrectly.
- You didn’t seek medical treatment soon enough after the injury.
- Your medical records are insufficient.
- You have a preexisting condition, and the insurance company claims you did not incur your injury because of the accident.
If your personal injury claim is denied, we can help you by sending a demand letter to the defendant’s insurance company. This demand letter would include all your attorney’s research regarding your case and what compensation they believe you deserve for your injury.
If the insurance company still denies the claim, your attorney will continue to negotiate. The case may be settled out of court. Otherwise, filing a personal injury lawsuit is the next step.
Steps in a Personal Injury Lawsuit
- Litigation Phase: Your attorney will speak primarily with the defendant’s defense counsel, rather than their insurance adjuster.
- Discovery Phase: Your attorney requests evidence from the opposing party and carries out depositions, which are opportunities to gather evidence by interrogating the defendant while under oath.
- Civil Trial: Your case will go to trial if settlement is not otherwise reached. Civil trials can take just a few hours or even several months. After hearing the evidence from both sides, the judge will issue a final verdict (decision).
This should give you a clearer idea of how complicated the processes for both workers’ comp and personal injury claims can be. Again, you need a seasoned attorney on your side.
How Long Do I Have to File?
Workers’ Comp
According to New Mexico’s statute of limitations, you have one year from the date of injury to file a workers’ compensation claim and three years to file a personal injury claim.
If you miss these deadlines, your chance of receiving compensation decreases dramatically.
Call Us Today
You’ve suffered enough—you owe it to yourself to learn about your legal options in pursuit of compensation.
Michael J. Doyle, Attorney at Law, has nearly 20 years’ proven legal experience in both workers’ comp and personal injury claims. He and our trusted legal team want to help clients receive the compensation they deserve.
Call us today at (505) 219-2176 or submit your information here to schedule your free consultation.