Difference Between a Personal Injury and Workers' Compensation Claim

The main differences between a workers' comp claim and a personal injury lawsuit are the fault requirements and types of compensation available.

By , J.D. · University of San Francisco School of Law

The biggest and most important difference between a personal injury claim and a workers' compensation claim is that a personal injury claim is based on fault while a workers' comp case is not.

In order to recover damages against someone for a car accident, a slip and fall, or indeed any type of personal injury claim, the other person must be negligent, meaning that the person must have done something wrong.

Another major difference is the type of compensation available. In personal injury claims, you're eligible for a wider variety of damages than in workers' comp claims, including pain and suffering, loss of earning capacity, punitive damages, and more.

Personal Injury Lawsuits: You Must Prove Someone Was at Fault for Your Injury

To understand the concept of fault in a personal injury claim, consider a typical slip-and-fall case. Simply because you slipped and fell on someone else's property doesn't mean that the person who owns the property (or anyone else for that matter) was negligent. Accidents, where no one is at fault, do happen.

In order to recover damages for slipping on someone else's property, you and your lawyer must prove that that other person negligently maintained the property. In other words, you must show that the other party did something wrong. Similarly, if you are in a car accident, you can only recover damages from the other driver if the other driver was at fault.

Workers' Comp Cases: Fault is Not Required

In a workers' compensation case, any employee injured on the job is entitled to workers' compensation benefits, with some very limited exceptions. Workers' compensation has nothing to do with fault. You don't need to prove that your employer or your co-workers did anything wrong in order for you to receive workers' compensation benefits. Even if you were negligent, and your negligence caused your injury, you're still entitled to receive workers' compensation benefits.

Workers' Comp vs. Personal Injury: Damages for Pain and Suffering

The biggest difference in damages between a personal injury lawsuit and a workers' compensation case is that you aren't entitled to benefits for pain and suffering in a workers' compensation case. In a personal injury claim, you are entitled to recover all of the damages that you have suffered.

Damages include lost earnings, lost earning capacity, medical bills, future medical expenses, permanent impairment, pain and suffering, and loss of enjoyment of life (i.e., hedonic damages), punitive damages against the wrongdoer, and more.

But in a workers' compensation case, you can only receive weekly compensation, permanent impairment benefits, medical bills, and vocational rehabilitation. (For more detail, see How Much in Workers' Compensation Benefits Will You Get?)

You cannot receive benefits for pain and suffering in a workers' compensation case. This is because the concept of workers' compensation is basically a trade-off between labor and business owners.

Before states enacted workers' compensation laws around the turn of the 20th century, the only remedy that injured workers had against their employers was to sue them for negligence. If the employer was not negligent, or if the employee did not sue or bring a claim against the employer, the employee got nothing.

Workers' Comp: You Usually Cannot Sue Your Employer or Your Co-Workers

The workers' compensation laws ensured that all workers who were injured on the job would get some weekly benefits and would get their medical bills paid. In return, injured workers lost the right to sue their employers and co-workers for negligence and lost the right to collect damages for pain and suffering.

Exceptions to this rule exist, however. For example, if an employer's intentional act caused your injury, you can usually still file a lawsuit and collect pain and suffering damages.

Are There Any Workers Who Can Still Sue Their Employers?

Yes, two small classes of employees do not fall under any workers' compensation laws: crewmembers of vessels and interstate railroad workers.

If you are a crewmember of any type of boat, from a cruise ship down to the smallest two person commercial fishing boat, you are not entitled to workers' compensation benefits. Instead, a federal law known as the Jones Act authorizes you to sue your employer for damages, including pain and suffering, if you get hurt on the job. If you are a member of a crew of a vessel and get hurt in the course of your employment, you should contact a lawyer who specializes in Jones Act cases.

Interstate railroad workers are authorized by a law called the Federal Employers Liability Act (FELA) to sue their employer for damages if they get injured on the job. Interstate railroad workers are workers who work for a railroad that operates in more than one state. Commuter rail workers do not always fall under the FELA. If you work on a railroad and get injured on the job, you should contact a FELA lawyer for more information about this law.

When to Hire a Workers' Comp or Personal Injury Lawyer

If your injury or illness is work-related and your employer disputes your claim, consider hiring a workers' comp attorney to represent you. You should also obtain legal representation if you want to appeal a denied workers' comp claim, or if your claim is complex or high value. Consult a personal injury attorney for claims that aren't related to your work.

Most states have laws that prohibit workers' comp attorneys from charging a fee unless you win your case. Personal injury attorneys have greater freedom to structure their fees as they'd like, but many operate on a contingency basis ("no win, no pay") as well.

Whatever kind of attorney you need, make sure you understand how the fee works before you sign a representation agreement.

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