In many workplace accidents, an injured employee can seek compensation under the worker’s compensation claim and file a personal injury claim for the same accident. This happens a lot especially in the construction sector where workers under multiple contractors are working together on the same job.
For example, when a painter working on a large construction project encounters live electricity wires left exposed due to the negligence of an electrician working on the same site, for a different contractor.
The injured painter can seek compensation from the worker’s comp insurance carrier of his employer and from his own employer too. At the same time, the painter can also file a personal injury claim seeking compensation for negligence from the electrician and the electrician’s employer.
Employees injured in a motor vehicle accident while driving as a part of their work, can claim compensation under both a worker’s comp claim and a personal injury claim.
Understanding Subrogation and Indemnity Lien
An important thing to understand in accidents involving both personal injury and worker’s comp claims is the strong subrogation and indemnity lien in worker compensation. What this essentially means is that the money paid by the worker’s comp insurance carrier needs to be reimbursed out of any awards or settlement received from the personal injury claims in the same accident.
Employers and insurance carriers in some states place a lot of emphasis on subrogation because it allows them to recover a part of the money spent by them on indemnity and medical expenses. Subrogation is applicable to both the past and future claims in many states.
Arriving at a conclusive subrogation lien value is a complex process because of the longer time it takes to settle personal injury claims if they end up in litigation.
How to Recover the Maximum Compensation?
Differences in both the systems sometimes make it difficult to judge whether the personal injury claim in a case is more valuable or the worker’s compensation part. The knowledge of specific facts of a case is important to evaluate and finalize the best strategy to maximize the net compensation recovery.
Mostly, negotiating a combined settlement of the worker’s comp claim and the personal injury claim is in the best interest of the injured worker. It is always helpful to engage experienced attorneys who can diligently examine the facts of the case to evaluate and select the best course of action that can result in maximum possible benefits for the worker.
When Can You File a Claim?
Legally, there are restrictions to file an injury claim against your employer instead of, or in addition to accepting compensation from the worker’s comp insurance carrier. To go to trial in a civil court, you must be able to prove that:
- Your employer injured you intentionally.
- Your employer has inadequate or no worker’s compensation insurance.
Filing a Personal Injury Claim against Your Employer
If you think you have sufficient grounds to file a personal injury compensation claim against your employer in a civil court, you can stand to recover a larger amount of compensation for your injuries than the provisions of the worker’s comp claim.
Apart from the compensation for lost wages, reimbursement of medical expenses, and indemnification for any physical impairment, you may also be able to plead for damages owing to the incalculable suffering and pain. Suing an employer is an uphill battle, however, and in order to be successful with this type of claim, you will need to show that the injury occurred because of the employer’s deliberate actions.
If you have a valid deliberate intent action against an employer, you might also be able to recover punitive damages. Punitive damages can result in the court penalizing the employer with an amount that could be multiple times the amount of actual financial damages. The court imposes punitive or exemplary damages when it concludes that a defendant was reckless or acted with intentional malice.
Filing a personal injury compensation claim against an employer can be a very complicated process. You need to file specific documents depending upon the state where you reside, where the employer is located, and where the accident took place. Talking to a qualified personal injury attorney is imperative to decide the correct authority and file the case in a proper manner.
The statute of limitation for filing a personal injury claim is often short – usually two or three years, but it could be less in cases in which government entities are involved. If you think your case has merit, contact a personal injury attorney for a consultation and case assessment.
Preparing Your Case
It’s vital that you are well-prepared if you decide to go ahead and file a lawsuit against your employer. Your employer’s attorney will undoubtedly argue to prove that his client did not act out of malice or poor intentions. The onus will be on you to be able to prove your employer’s intent to hurt you.
You must be able to prove that the injuries sustained by you were related to your work. You will also need to establish wrongdoing on the part of your employer that caused your injury.
Finally, in a personal injury claim, you must provide documentation relating to the damages, including lost wages, medical expenses, and evidence of any permanent impairment that might need future treatment.