Almost 3 million U.S. workers are injured on the job every year. Their first destination is usually a doctor’s office or hospital, but they also enter the workers compensation system.
It’s a state-regulated insurance program that ensures workers will be taken care of even if they caused the accident. The common term is “No fault,” which means what it says – Whose fault it was doesn’t matter.
Even if the employee caused the accident, they will be paid for medical bills and lost wages. The hitch is that if the employer caused the accident, the employer will not have to pay for pain and suffering or punitive damages.
That’s where the big money is if an employee is seriously injured and wants more than medical and wage coverage. And that presents a big decision.
Workers must basically choose whether to take the sure thing of workers compensation benefits or give that up and sue their employer where there is a risk of getting nothing.
Most go with workers compensation, though it pays to take a look at all aspects of the system and determine when filing a workers comp lawsuit might be appropriate.
Personal Injury vs. Workers Comp
Say you work at a construction site and the rules require you to wear a hardhat. You forget to put it on one morning and a five-pound wrench falls on your head. It cracks your skull and you are out of work for six months.
Even though you were negligent, you could still have your medical bills and lost wages covered. Under workers compensation, seriously injured workers also have permanent or partial disability benefits and vocational rehabilitation benefits.
But what if you were wearing a hardhat and a big wrench fell and broke your shoulder? You might want to be compensated for pain and suffering and punish the employer for allowing unsafe work conditions.
That would require filing personal injury lawsuit. Now, you have a big decision to make since you cannot also file for workers compensation. And if you can’t prove employer was negligent, you risk receiving no compensation.
The system is essentially a tradeoff between business owners and labor. Owners get the protection of not getting sued because they accept responsibility for all accidents. Workers give up the right to sue so they don’t have to accept responsibility for accidents in the workplace.
“If you’re the employee, you’ll never be responsible for medical expenses,” said Gregg Page of the Florida-based Page & Eichenblatt law firm, which specializes in workers comp and personal injury law. “If you’re the employer, you won’t have to deal with any other damages.”
The rise in medical expenses has made worker compensation more attractive, he said, since a catastrophically injured worker could face thousands, maybe tens of thousands of dollars in medical bills.
“Lifetime medical can be worth a lot. There used to be more caps on lifetime medical benefits, now there are fewer,” Page said. “The system isn’t perfect, but it’s a fair system.”
So is it better to file a personal injury lawsuit than file for worker’s compensation?
That all depends on the circumstances, but there’s a reason the majority of workers take the sure thing. It’s difficult to prove negligence and that an employer intentionally hurt you.
“You have to prove there is almost criminal intent on the part of the employer,” Page said. “Most personal injury lawyers will tell you that’s a long shot.”
It is a long shot, but it does hit the jackpot enough to fund an entire branch of the legal industry. If you are confident that your employer was negligent, a personal injury lawsuit is worth serious consideration.
Be aware that workers compensation benefits will come quickly and be paid on a regular basis. A personal injury payout will likely be in one lump sum, but it could take months or years of legal proceeding to get it.
Pain and Suffering
Broken bones and other definable injuries cause pain and suffering, but they have set medical costs. They are considered “general damages” and would be covered by workers compensation.
Pain and suffering caused by shortening of life, limitations on physical activity and mental injuries such as embarrassment, grief and worry is subjective. They are considered “special damages” and not covered by workers compensation.
There is no standard rule for determining the cost of pain and suffering. Attorneys often calculate it by multiplying their client’s general damages by a number between one and five, depending on the severity of the injury.
For example, a broken leg with $3,000 in medical bills might be multiplied by three, resulting in $9,000 in pain and suffering.
Another common way is to assign a monetary figure, say $50 a day, to every day from the date of the accident to the day a doctor declares the worker has reach Maximum Medical Improvement (MMI), meaning this is as good as it is going to get. By any calculation method, pain and suffering can add up to quite a sum of money. The tricky part is proving those damages to a jury.
That’s not an issue with workers compensation claims, though the process can resemble a trial if the insurance company rejects your claim or both parties can’t agree on a settlement.
In that case, most states require both parties to attend mediation, where a neutral third party (usually an attorney with workers comp experience) will hear both sides and try to persuade them to agree on a settlement.
If that fails, the next step is a workers compensation hearing before a judge. Though special damages like pain and suffering is not a consideration, general damages are often in dispute.
“The battle is always about the severity of the injury and how it affects people in the long run,” Page said. “That’s where the rubber meets the road.”
If the judge rejects the workers claim or the insurance company is not satisfied with the ruling, most states have an appeal process through their regular court systems.
Punitive damages punish defendants for negligence and are awarded if courts find the defendant’s behavior especially harmful. There is no maximum amount a judge or jury can award, though the amount typically does not exceed four times the amount of general damages.
As with pain and suffering, that can add up to a nice piece of change. But as with pain and suffering, punitive damages are excluded from workers compensation claims.
Employer Not Insured
Employers are required to carry workers compensation insurance in every state except Texas. If your employer does not have workers comp insurance and you are injured on the job, your first option is to file a personal injury lawsuit.
In that case, you could sue for pain and suffering and punitive damages. But if the employer is irresponsible enough not to carry workers compensation insurance, it’s probably because he doesn’t have a lot of assets to protect. There’s a good chance that company won’t be able to afford a large court settlement.
Independent Contractors and Volunteers
A 2018 NPR/Marist poll found that 20% of the U.S. jobs are held by independent contractors. That is expected to rise to 50% in the next decade as the “gig economy” expands.
Most individuals providing services to a for-profit business are considered “employees” and must be covered by workers compensation insurance. But the definition of “independent contractor” varies from state to state.
Many exclude volunteers and jobs like taxi driver, part-time maintenance worker and agricultural worker. In some states the business owner or proprietor is not covered under workers compensation.
This is a common area of contention, so check with your state for specific regulations.
Uninsured Employer Funds
Though it’s against the law (except in Texas) for an employer not to carry workers compensation insurance, it still happens. Besides filing a personal injury suit, an injured employee can seek benefits from an uninsured employer fund.
The idea is to pay the injured employee the same benefits they would have received under workers compensation, though that often is not the case. The funds are collected by taxes on workers compensation policies.
Workers must apply for compensation, but the regulations vary from state to state. So again, check with your state labor board for specifics.
A retaliatory discharge occurs when an employee is fired after doing something within their legal rights that an employer didn’t like. For instance, complaining about workplace conditions or filing for workers compensation.
An employer cannot fire a worker for filing such a claim, but they could fire an employee while that claim is open. They must show the firing was justified by other employee actions and not related to the workers compensation claim.
It’s doubtful any employer would be dumb enough to admit firing an employee for filing a claim. That would open them up to retaliatory discharge lawsuit, which could result in a costly judgment.
Just because it’s again the law doesn’t mean it doesn’t happen, of course. If you feel you are the victim of a retaliatory discharge and have evidence to back it up, call a workmans comp attorney.
Third Party Lawsuit
You can’t sue your employer if you file for workers compensation. But you can file a personal injury lawsuit against someone who is not your employer if they are responsible for your injuries.
For instance, an Amazon delivery man slips on a broken step while carrying a package to a third-floor apartment. He could file for workers compensation and also sue the apartment complex for negligence.
Third-party lawsuits would seek payment for general and special damages. If the delivery man won in court, he would have to reimburse the insurance company for workers compensation benefits he received.
But further medical bills and lost wages would have been included in the workers comp settlement, and he would keep any pain and suffering damages and punitive damages.
Product Liability Lawsuit
Equipment and machinery can malfunction even if employers and employees have followed all safety rules. When that happens and a worker is injured, they might have a product liability claim against the manufacturer.
For instance, if a ladder collapses under a construction worker, they can file for workers compensation and sue the ladder company for manufacturing a faulty piece of equipment.
Since it would be a personal injury lawsuit, the employee could collect punitive damages and pain and suffering damages.
“Tort” is French for “wrong,” but the U.S. legal community co-opted the term to mean a wrongful act, intentional or not, that harms somebody. A toxic tort claim is filed by a person who claims they have been exposed to a harmful substance.
They are usually toxic chemicals like lead, arsenic, mercury and radium. After exposure, the injured party sues the manufacturer for damages.
If an employee is exposed on the job, it’s similar to a product liability claim. They can file for workers compensation and file a personal injury suit against the toxin manufacturer. Toxic torts claims can be more difficult to prove, however, because the damage may take years to develop.
If you break an arm at work the damage shows up immediately on an X-ray. Similarly, if you suffer chemical burns or are poisoned, the damage is apparent. Those are called “acute” injuries.
Toxins can work much more slowly. Lengthy exposure can cause cancers or other diseases but they don’t show up right away. They are called “latent” injuries, and determining fault is more difficult because of the elapsed time.
It’s difficult, but far from impossible. A California jury awarded a school groundskeeper $289 million in 2018 after finding his non-Hodgkin’s lymphoma was caused by the weed killer Roundup.
The jury concluded that the manufacturer, Monsanto, failed to adequately warn users that the product came with cancer risks. The groundskeeper was awarded $39 million in general damages and $250 million in punitive damages.
Asbestos & Mesothelioma
Asbestos is heat-resistant fibrous material that was used extensively for decades in construction, manufacturing and other heavy industries. Its fibers can be inhaled and cause lung damage, most notably mesothelioma, a cancer that affects the lining of the lungs, heart and abdomen.
Hundreds of thousands of workers were exposed before the health hazards were fully known. That spawned the largest product liability issue in U.S. history.
The Occupational Safety and Health Administration says that as many as 1.3 million people are still exposed to asbestos in their workplaces. OSHA and other agencies monitor and regulate asbestos levels and employers are required to protect workers from damaging exposure.
Mesothelioma is a latent injury since it takes years to develop. Even though the dangers of asbestos have been known for years, workers are still getting sick. According the insurance consulting firm KCIC, 4,251 asbestos-related lawsuits were filed in 2017.
As with other third-party claims, injured employees generally file for workers compensation and then sue the asbestos manufacturer for punitive damages and pain and suffering.
Third-party claims certainly make it easier for injured employees to pursue damages, but if employer negligence is not cut-and-dried employees are back to the big decision.
The best advice is to check your state regulations, talk to lawyers you’ve been recommended to and get some sound legal advice. It’s bad to be injured on the job. It’s even worse if you end up paying for it.
About The Author
George Morris’ 40-year writing career includes stories on Super Bowls, evangelists, World War II veterans and ordinary people with extraordinary tales. He has been honored with awards from the Society of Professional Journalists and the Louisiana Press Association. His recent focus has been personal finance advice and now, workers compensation. George can be reached at email@example.com.
- James, M., Ortiz, J. (2018, August 10) Jury orders Monsanto to pay $289 million to cancer patient in Roundup lawsuit. Retrieved from https://www.usatoday.com/story/news/2018/08/10/jury-orders-monsanto-pay-289-million-cancer-patient-roundup-lawsuit/962297002/
- N.A. (ND) A History of Asbestos and the Manville Trust Fund. Retrieved from https://www.washingtonpost.com/archive/business/1990/11/20/a-history-of-asbestos-and-the-manville-trust-fund/fb60ed34-2a94-4570-9648-9e2efb8167f0/?utm_term=.e59bf7bf93
- N.A. (ND) OSHA Commonly Used Statistics. Retrieved from https://www.osha.gov/oshstats/commonstats.html