Do I Need a Personal Injury Lawyer or a Workers' Compensation Lawyer?

Injured workers are almost always limited to workers' compensation, so a lawyer experienced with that system is usually the best option, but there are some exceptions.

Both personal injury lawyers and workers’ compensation lawyers help injured individuals recover compensation. However, workers’ comp lawyers exclusively represent people who have been injured at work. Personal injury lawyers help those who have been injured outside of work (or those who have been injured at work due to the fault of someone other than the employer).

When You Need a Workers’ Comp Lawyer

If you are injured at work or while performing work-related activities—such as running a work errand—your injuries will typically fall within the workers’ compensation system. The workers’ comp system is designed to streamline the process of getting workers compensated for their injuries and back to work as quickly as possible. Workers’ comp is the exclusive remedy for injured workers against their employers; they cannot sue their employers in court.

In nearly every state (except Texas), workers’ compensation insurance is mandatory. Your employer must:

  • purchase a policy from a private insurance company
  • pay into a state-run insurance program, or
  • qualify to become self-insured (that is, administer and pay out its own claims).

Because workers’ comp is an administrative process, it’s not always necessary for an injured worker to hire a lawyer. For example, if you file a claim and the insurance company promptly begins paying your benefits, you may not need a lawyer.

On the other hand, if the insurance company denies your claim, reduces your benefits, or disputes your permanent disability rating, you will likely need the assistance of a lawyer. To challenge these decisions, you’ll need to file an appeal with the state workers’ compensation agency, which requires knowledge of workers’ comp laws and procedures.

When You Need a Personal Injury Lawyer

If your injuries have nothing to do with work—for example, you had a slip-and-fall at a grocery store during your weekly shopping trip—you will need to hire a personal injury lawyer. A personal injury lawyer usually handles the following types of cases:

  • automobile accidents where the other driver was at fault
  • slip-and-falls or dangerous conditions on another person’s property
  • injuries caused by defective products put out by companies, and
  • injuries caused by errors by a medical professional.

(To learn more, see our accidents and injuries section.)

Because personal injury cases are handled in regular court, you will most likely need to hire a lawyer to handle your case. (Although in some cases, such as a minor car accident case, you might be able to negotiate your own settlement with the insurance company without going to court.) Your lawyer will need to file paperwork by the correct deadlines, gather evidence using established legal tools, and take other steps that most people would have no reason to know about. (To learn more, see our article on the differences between workers’ comp claims and personal injury lawsuits.)

When You Need Both Types of Lawyers

In some cases, you might actually need a personal injury lawyer and a workers’ comp lawyer simultaneously. This happens when someone is injured at work, or while performing a work-related activity, but a third party is also responsible for the injury. Here are some examples:

  • a delivery person is on route to deliver flowers for a customer when a third party runs a red light and crashes into him or her
  • a factory worker is injured while operating machinery at work, but it turns out that the machine had a faulty safety valve
  • an administrative assistant runs a work errand to cash a check at the bank and slips on liquid that’s been sitting there for hours, and
  • a worker injures his back lifting boxes at work and has surgery, but the doctor mistakenly leaves a medical sponge in his back.

In each of these cases, the person has a workers’ comp case because he or she was working at the time of the injury. However, there’s also a third party who contributed to the injury or caused a new injury.

Some firms handle both workers’ comp and personal injury cases, in which case you will only need to hire one lawyer or firm. However, more often, lawyers only handle one of these areas of laws. So, you may need to hire two separate lawyers or firms.

The Difference in Compensation

Workers’ compensation intentionally limits the types and amounts of benefits that injured workers can receive. For example, wage loss benefits are typically around only two-thirds of the worker’s actual wage loss. Likewise, compensation for a permanent disability is set by statute at relatively low rates. And all benefits have a statutory cap, which means that high earners get compensated disproportionately.

Perhaps most importantly, workers’ comp does not pay anything to workers for the pain and suffering they have to endure due to their injuries, recovery, and sometimes lasting physical effects. By contrast, there are typically no such restrictions on compensation in personal injury lawsuits (except medical malpractice cases, in some states).

The Difference in Attorneys’ Fees

Both workers’ comp lawyers and personal injury lawyers typically charge on a contingency fee basis. A contingency fee means that the lawyer does not charge you up front for legal fees. Instead, the lawyer takes a percentage of any settlement or award that the lawyer helps you obtain.

Personal injury lawyers typically charge a contingency fee of around 33%. Sometimes, this fee will go up to around 40% if you need to go to trial. Workers’ comp lawyers often charge far less because their fees are often capped by state law. While the cap ranges from state to state, it’s often between 10% and 25%.

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