Workers’ compensation (workers’ comp) is a legally mandated form of insurance in all states in the U.S., except Texas. Texas is the only state that does not mandate employer participation in its state workers’ comp system and about 38% of eligible employers in Texas have chosen to opt out of it.

In a workers’ comp system, the employer’s workers’ comp insurance provides workers who have experienced injury or illness in the course of their employment with wage replacement and medical benefits. The sick or injured worker is then not able to sue their employer for negligence in civil court. 

The trade-off is considered fair because the sick or injured employee is assured compensation for lost wages and the cost of their medical care in exchange for giving up recourse outside the workers’ comp system. Workers’ comp systems were enacted in order to keep employers from going bankrupt if injured workers were given costly damage awards in negligence actions. Also, compensation to injured workers is ensured. 

In a personal injury case, an injured person sues the entity whose negligence was the direct cause of their injury in a civil court of general jurisdiction. The person recovers damages for lost wages and the cost of their medical care, but can also recover money damages for pain and suffering. Damages for pain and suffering can sometimes amount to a substantial amount of money. However recovering damages in a personal injury case is never certain.

A few of the main differences between personal injury lawsuits and worker’s compensation claims include:

  • Determining Fault: A person who files a personal injury lawsuit generally must prove that the person sued was at fault for causing their injury. In most cases, this would involve some form of negligence. In comparison, the injured employee in a workers comp claim does not have to prove fault or negligence on the part of the employer to recover compensation; 
  • Damages for Pain and Suffering: In a personal injury case, a person can recover an award of damages for pain and suffering if the facts justify it. This would be in addition to compensatory damages for lost wages and the costs of medical care. In contrast, a workers’ compensation award does not include an amount for pain and suffering. Also, workers’ comp awards are usually paid weekly or periodically, while personal injury damages are collected in lump sums;
  • Punitive Damages: A worker cannot recover punitive damages, that is, damages that are imposed on a defendant because their actions in causing injury were especially egregious. A person who files a personal injury lawsuit might recover punitive damages if the facts warrant it;
  • Right to Sue: Technically, a worker who is injured or sickened on the job cannot file a lawsuit against an employer. In most cases a worker is legally obligated to turn to the workers’ comp system in their state for compensation; 
  • Forum: A personal injury lawsuit is filed and proceeds to its conclusion in a civil court of general jurisdiction, but states have separate administrative law hearing systems for processing workers’ comp claims.

Some of the most common kinds of workers’ comp injuries are slips, trips, and falls on the job. A workplace does not have to be especially hazardous for employees to slip on wet floors or snowy walkways. If a store clerk is injured when they slip and fall on wet, freshly washed floors, the clerk would have a workers’ comp claim. If a customer of the store were to slip and fall on the same floor, they would have grounds for a personal injury lawsuit.

Are All Employees Covered by Workers’ Compensation Coverage?

In the U.S. some form of workers’ compensation coverage is typically mandatory for almost all employers in most states. To some extent it may depend on the features of the employer. Texas is an exception. Regardless of legal requirements, businesses may purchase workers’ comp insurance voluntarily. In the U.S., workers’ comp insurance policies typically include coverage for both compulsory coverage and for non-compulsory coverage. 

In many states, employers are legally allowed to show that they have sufficient funds to cover their workers’ compensation liabilities and then they are allowed to engage in self-insurance. This simply means that they do not have to buy insurance coverage for workers’ comp claims, but pay them out of their own funds.

The U.S. Department of Labor has an Office of Worker’s Compensation Programs that is responsible for workers’ comp policies for federal employees, longshoremen, and coal miners. 

What Are the Damages I Can Recover?

An employee can recover for the lost wages and the costs of their medical care in a workers’ comp case. If a worker is killed on the job, their family receives a death benefit.

The difference in damages between a personal injury lawsuit and a workers’ compensation claim is that an employee is not entitled to benefits for pain and suffering or punitive damages in a workers’ compensation claim. In a personal injury lawsuit, the person bringing the suit is entitled to recover all the damages that they suffered including damages for pain and suffering. 

In a personal injury lawsuit a person can also recover punitive damages, which are awarded to punish the negligent defendant for especially egregious instances of negligence. Punitive damages are not available in workers’ comp claims.

Another difference is that workers’ compensation benefits are usually given to the employee in a timely manner, usually within days, whereas resolution of a personal injury case can take years and there is no provision for paying the injured party between the time the case is started and its resolution.

What Are Some Issues to Consider When Choosing Legal Options?

A person who has experienced injury or illness in connection with their employment may want to consider the following factors when considering legal remedies:

A person who is unsure of whether their injury or illness is work-related would do well to consult a personal injury attorney or a workers’ comp attorney for advice. An attorney can review the facts of the person’s case and determine whether it belongs in the workers’ comp system or in a civil court of general jurisdiction as a personal injury lawsuit.

Can I File a Workers’ Compensation Claim and a Personal Injury Lawsuit?

Typically, an employee who experiences injury or illness in connection with their employment must turn to their state’s workers’ comp system for compensation. They would file a workers’ compensation lawsuit. They would not be able to file a personal injury lawsuit against their employer or another employee. 

However, in some workers’ compensation claims, there may be a third party involved in the accident or injury. These are called combination cases.

If the accident or injury was the result of the negligence of someone who is not the employer, i.e. a person who is unrelated to the employee’s job, then the employee may file a separate personal injury lawsuit against the third party whose negligence was the direct cause of the employee’s injury.