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.