Workers’ compensation cases have several key differences from personal injury cases. At the Work Injury Center, we are experienced work injury lawyers who understand these key differences. We do everything we can to help workers get all the work injury benefits they deserve and to also preserve their personal injury rights.
Before the North Carolina and Virginia worker’s compensation laws were enacted, employees had to bring personal injury cases against their employer. These lawsuits put a lot of pressure on the work relationship. Eventually, State legislators realized these lawsuits hurt more than helped both sides. The workers’ compensation laws were compromises to help workers get paid and return to work when they are able, while reducing the demands on the employer to defend the lawsuits and risk having to pay large awards.
Here are some of the key differences:
- Fault of the employer. In a typical car accident case, a slip and fall case, or any other negligence case, the injured party making the claim must prove by a preponderance of the evidence that the defendant acted carelessly and that this carelessness caused the person’s injuries. It means the plaintiff must prove that the defendant did something wrong such as failing to inspect the premises, failing to make necessary repairs, failing to obey the traffic laws or relevant work safety laws, or failing in some other way.
In a worker’s compensation case, there is no need to prove the employer was at fault. The key requirements are that the worker show that the accident happened while the employee was performing his/her job and that the accident caused he worker’s injuries. There is no need to assign blame. There is no need to have co-workers testify or to cross-examine your boss as to what he may or may not have done wrong.
That being said, in North Carolina there are extremely rare circumstances where an employer’s gross negligence can permit a lawsuit instead of a workers comp case; however, this is almost never permitted. In North Carolina, if the employer can be shown to have violated an OSHA or other safety law which proximately caused the worker’s injury, there is a potential 10% increase in compensation available to the employee.
- Fault of the worker. Similarly, this lack of necessity to prove fault goes both ways. In a normal lawsuit such as a car accident or slip and fall case in either Virginia or North Carolina, as a litigant, even a slight amount of fault on your part will completely bar you from being successful in your case. This is known as contributory negligence. For instance, if you failed to watch where you were going and see an open an obvious condition and then fell over it, you are barred from bringing a lawsuit against those responsible for that condition.
That is not the case in Workers Compensation. In Virginia, unless it can be proven that you willfully ignored a known safety rule which caused you to get injured, your negligence or carelessness will not prevent you from bringing a worker’s compensation case.
In North Carolina, even if you violated a safety rule or OSHA rule, similar to the rule against employers, this would not bar your case, but may result in a 10% reduction in your compensation.
- The cost. In order to prove fault in lawsuit and negligence situations, an attorney is required to handle the case. Most lawyers take personal injury cases on a relatively high contingency fee basis. This means that if the injured person wins the case, the lawyer gets paid 33.33% to as much as 40% or 50% of the recovery, depending on the arrangement.
The contingency rate is much less in worker’s compensation cases, typically 20% in Virginia and 25% in North Carolina. Moreover, all such arrangements are subject to the approval of the Virginia Workers Compensation Commission and the North Carolina Industrial Commission.
In personal injury cases, it is often necessary to bring expert witnesses into court. Doctors charge high rates for testifying in court or via video deposition because they’re losing time away from the office.
In worker’s compensation cases, many times, the testimony of the doctor can be submitted through the physician’s medical reports or by taking a medical deposition, both of which are far less expensive than bringing the doctor live to Court. In personal injury cases, there also may be the need to bring in experts such as traffic reconstruction experts or economic experts who can be expensive too. Such experts are typically not involved in workers compensation cases.
- Before a personal injury case goes to trial, all sides are entitled to submit written questions, to make the parties and key witnesses testify at depositions. The sides often file legal motions, briefs, and counter-motions that can take weeks or months to decide. The time from the date of the accident to a trial is generally much longer in personal injury cases than the time for a worker’s compensation hearing. In addition, trials can take days or even weeks to complete. Most workers compensation hearings last a maximum of two hours.
- The risk. Trials are generally submitted to a jury of your peers. Worker’s compensation cases are heard before an experienced worker’s compensation referee. With a jury trial, the injured person doesn’t really know the jurors other than what the lawyers can reasonably guess at through the jury selection process. Most experienced workers’ compensation Deputy Commissioners understand the legal issues of the case. That difference makes personal injury cases more risky and costly.
- Damages. Another big difference is the damage amounts and types of damages you can claim in personal injury cases vs. workers compensation cases.
- Lost income. In personal injury cases, the injured party is entitled to claim 100 percent of his/her lost wages as part of damages. In workers’ compensation cases, the injured worker is entitled to 2/3rds of the average lost weekly wages subject to proof of the inability of the worker to do his/her job, find a job within his or her restrictions, or be held out of work completely by the treating doctor.
- Medical bills. In both work injury and personal injury cases, the injured worker is entitled to full compensation for all hospital surgeries, doctor visits, medications, and medical devices that are related to the work injury; however, in an injury case a jury awards money to pay these bills after hearing evidence of the amounts, while in a workers compensation case, there is no such evidence. There is merely a ruling from the Commissioner as to whether or not the defendants are responsible for paying all related medical bills. If the Commissioner so rules, then those bills are paid directly by the carrier. The money does not go to the injured worker.
- Pain and suffering. This is a fundamental difference between the two types of claim cases. In personal injury cases, the injured party can claim damages for the physical pain, emotional suffering, and loss of life’s pleasures that they endure. In work injury cases, employees are not entitled to compensation for any of their pain and suffering or inconvenience. This is unfortunately one of the most difficult things to explain to clients, especially where a claim is denied and a client is suffering horribly as a result of lack of proper medical care as they wait for the case to get to hearing.
- Employee status. Only employees can bring a workers’ compensation claim. Independent contractors and non-employees must bring a personal injury claim in order to get any damages. That being said, caution must be exercised before assuming that one can bring a claim against another contractor on a job. Such a contractor could be considered a ‘statutory employer.’
In addition, the employee vs independent contractor relationship is complicated. Workers should not automatically assume they are an independent contractor just because that is what the employer says. In some cases, we can prove that the worker really was controlled by the employer and should be considered an employee who can demand work injury benefits, even if there is a contract that says otherwise. Click here for more information on this issue of employees vs. independent contractors.
- Most employers, unless they have less than 3 employees regularly employed in their business, are required to have workers’ compensation insurance or required to show that they can satisfactorily fund any work injury award. The same is not necessarily true in personal injury cases. Generally, vehicle drivers are required to have insurance up to certain minimal dollar amounts. In Virginia, an injured employee who worked for an employer who should have had workers compensation insurance and failed to may have access to compensation by filing a claim and obtaining access to the uninsured employer’s fund.
Whether it is appropriate to proceed in that regard depends on the size and assets of the employer. It is extremely rare that a large, well-financed employer fails to carry workers compensation insurance in Virginia; however, in the rare instance that it does happen, then a lawsuit may, in fact be brought against the employer by the employee and the employer waives all defenses to the lawsuit. Employees should seek competent counsel before deciding how to proceed.
Injured employees who do have a valid worker’s compensation claim may also, in some cases be able to bring a personal injury claim against a third party. For example, if the work equipment was defective, the worker can normally file a worker’s compensation claim and also bring a product liability claim against the manufacturer or seller of the defective product.
- The verdict and decision at hearing. Unfortunately, unlike jury trials, workers compensation hearing decisions are not rendered at the same day of the hearing. Decisions by the Deputy Commissioners can come as quickly as one day to six or seven months after the actual hearing. This of course does not include the right of the defendants to Appeal the decision to the Full Commission and also the Court of Appeals.
Speak with an experienced work injury attorney now
North Carolina and Virginia workers’ compensation attorney Joe Miller Esq. has been helping employees get justice for over 27 years. He is ready to explain your options, analyze and prepare your case, and plead your case with insurance adjusters and before workers’ compensation Deputy Commissioners . For answers to your questions and tough advocacy, please call at (888) 694-1671 to speak to a trusted workers’ compensation attorney or fill out our online form for more information.
