Can You Get Both Workers’ Comp and file a Personal Injury Lawsuit for the Same Injury?

Getting hurt on the job can lead to significant expenses and losses such as medical bills and missed income. And while workers’ compensation helps injured employees, benefits are limited. Fortunately, many victims can also file a personal injury lawsuit against negligent third parties.

It’s important to know the circumstances which allow victims to file these claims. Having experienced legal counsel can allow you to make a compelling case for the compensation you deserve. The Chattanooga firm of Wagner Workers’ Compensation & Personal Injury Lawyers is here to advocate for you.

What does workers’ compensation pay for?

Tennessee’s workers’ compensation system pays injured workers the following types of benefits:

• Medical expenses: These are for the injuries directly resulting from a workplace injury or illness and include related travel expenses.
• Temporary total or partial disability: This category includes temporary total and partial disability benefits in the form of partial wage replacement.
• Permanent disability benefits: If your injury causes you to be permanently disabled, either totally or partially, you could be eligible for benefits.
• Death benefits: These include funeral expenses and financial benefits for eligible survivors.

Workers’ compensation is paid regardless of who caused the accident, so liability is not a factor in receiving benefits. In most cases, employees cannot sue their employer. However, they may be able to sue a third party and seek monetary damages from them.

Why would I want to also file a personal injury lawsuit?

Workers’ compensation benefits are limited to those mentioned above. A personal injury lawsuit allows the victim to seek additional compensation, known as damages, that is not available with workers’ comp. Damages may include:

• Full (not just partial) wage replacement
• Loss of earning capacity and future income
• Future medical costs like long-term care
• Pain and suffering
• Emotional distress
• Decreased quality of life
• Loss of consortium (loss of the benefits of a family or marital relationship)

Tennessee law also allows victims to seek punitive damages in some cases. These are designed to punish especially wrongful conduct and deter future such incidents. Punitive damages are not available in all personal injury claims.

What to know about subrogation

If you win your personal injury lawsuit, the workers’ compensation insurance company can seek reimbursement or credit for what it has already paid. This is commonly referred to as a subrogation lien. Nonetheless, the employee can still recover more money than they would receive by only filing workers’ comp.

Workers’ compensation and personal injury claims can proceed simultaneously. Our firm can help you manage both claims and seek the maximum benefits for you.

When can a worker receive both workers’ comp and personal injury damages?

If you were hurt on the job and a third party (someone besides your employer) caused your injury, you may be able to file both workers’ comp and a personal injury lawsuit. Common examples of third parties that workers can sue include:

• Property owners: If a dangerous property condition such as hidden sinkholes caused your accident, the owner may be liable.
• Architects and engineers: Anyone who poorly designed a building, thereby causing dangerous structural issues, is also potentially liable.
• General contractors and subcontractors: These parties may be held responsible if, for instance, they neglected to follow safety regulations on the job site (these may be workers’ compensation claims depending on the employment relationship).
• Equipment manufacturers and retailers: The companies that make and sell equipment must ensure their products are safe to use or a victim could file a claim against them.
• Drivers: An employee who is injured in a car accident while performing work-related duties may be able to pursue personal injury damages from a negligent driver.

What does an injured worker have to prove in a third-party claim?

Unlike workers’ compensation, third-party personal injury lawsuits are based on fault. A worker who wishes to file one of these claims must show that a third party negligently did or failed to do something. More specifically, the victim must prove these elements:

• Duty: The at-fault party must owe the victim a duty of care. For example, drivers owe everyone else on the road a duty to drive safely and obey traffic laws.
• Breach: A breach occurs when someone does something or fails to do something and it violates the duty of care. Speeding is an example of a breach.
• Causation: Next, the victim has to show that the breach directly caused the victim’s injuries.
• Damages: Finally, the victim must establish the nature and amount of their damages (e.g. medical bills).

Steps you should take after being in a workplace accident

The decisions you make immediately after being in an accident will affect both your health and your legal rights. To preserve your right to both workers’ compensation and personal injury compensation, we recommend you do the following:

• Notify your employer immediately: Send written notice to your employer right away. Employees must provide such notice within 15 days of the accident, unless there is a reasonable excuse for the delay. Complete any forms your employer gives you.
• Seek medical attention: Your employer will provide a list of healthcare providers from whom you can seek treatment. Do so as soon as possible. Delaying medical attention can aggravate your injuries and allow an insurance company to deny you coverage.
• Document the accident: Take pictures and record videos of the accident scene. Include images of any defective equipment or anything else pointing to third-party liability. Get witness names and contact information.
• Document your injuries: Keep personal notes about your injuries and how they affect your life. Include information about pain and suffering and physical limitations. Keep all of your medical records.
• Preserve all correspondence: This includes anything you send to or receive from your employer or any insurance company.
• Speak to an experienced attorney: Our law firm practices both workers’ comp and personal injury law. We can advise you as to which steps you should take next for both claims.

How can an attorney help me?

Retaining legal representation early is the best way to maximize your benefits, through workers’ comp or a personal injury lawsuit or both. We serve Chattanooga workplace accident victims by:

• Investigating the cause of their accident and identifying potentially liable third parties
• Assisting with all aspects of the workers’ compensation process, including appeals
• Reviewing the facts of your case to determine if a third-party liability claim is available
• Filing a third-party personal injury lawsuit and serving it on the defendants
• Using the discovery process to obtain additional evidence in a third-party lawsuit
• Negotiating with the insurance companies to try to settle your claims
• Taking your case to court if the insurers refuse to act in good faith
• Ensuring that all relevant deadlines and procedures are followed

Hurt on the job? Talk to us about your legal options

If you were injured at work, it’s time to explore all available options for seeking the compensation you need to recover. Let Wagner Workers’ Compensation & Personal Injury Lawyers assist you. Get in touch with us today to get started on your accident claims.