People are generally familiar with the idea that an accident which occurs while working may constitute a workers compensation case, while an accident that occurs outside of work may constitute a personal injury case. There are times, however, when a single accident invokes BOTH a workers compensation AND a personal injury case. When this happens you may receive compensation under both claims for the same event. For this to occur, your injury must be work related, but caused by a “third party”, that is, someone or event that is not employer related. Some examples will illustrate.
Injured Fork Lift Driver
Lets say you are a fork lift driver employed by Company A, unloading a pallet of goods from a trailer that is operated by a driver from Company B. If the driver starts to move the trailer from the dock while the fork lift is on the dock plate, causing the fork lift to fall to the ground, injuring the fork lift driver, the fork lift driver would be entitled to compensation both from his employer (as clearly he was performing a work related activity when injured) as well as from Company B, (for negligently moving the trailer from the dock). Sound far fetched? It is, except that this event actually happened, and Lipkin & Apter represented the injured worker in both cases.
Injured Delivery Driver
Another, more common example, would involve a delivery man for Company A who is injured by another driver (either an individual or an employee of Company B) while making a delivery.
Proof of Negligence
You must keep in mind that each claim must satisfy the basic elements of a cause of action. In a personal injury setting, negligence must be proven, while in a workers compensation claim, you must only prove that you were performing your job duties in the course of, and in the scope of, your employment. Negligence is a non factor in a workers compensation claim.
Bank Worker Mold Exposure
A final illustration would be a bank worker injured from exposure to mold in a building owned and maintained by an entity other than her employer. Again, this is an actual case in which Lipkin & Apter was able to obtain compensation under both workers compensation and personal injury theories of recovery.
Double Recovery Not Permitted
The compensation to which the injured person will receive is not without some restraint. A basic principle of law is that a person cannot obtain a “double recovery” for the same event. An injured worker who receives both workers compensation and personal injury benefits must return 75% of his total workers compensation benefits to his employer (the employer must also pay a proportional share of personal injury expenses). In the eyes of the law, this prevents a double recovery. Although this return may sound like the personal injury benefit would be so limited as to be of questionable value, given the far greater value of a personal injury case, the opposite is the reality.
Assume the following facts: a worker earns $20/hour, his injury is a broken leg with surgery, he is off work 10 weeks, his medical bills are $50,000, and he returns after treatment, to full duties at his regular job, (as a production supervisor, which requires little or no physical labor), though he will have a permanent limp. That worker would receive as workers compensation benefits, 2/3 of his average weekly wage ($533.33/week for 10 weeks= $5,333) in temporary total disability benefits, plus partial total disability benefits (for the sake of this discussion we’ll assume 20% loss of a leg=$480/wk x 43 weeks, or $20,640). The medical bills would also be paid.
In his personal injury claim, the worker would claim $8,000 in lost earnings ($800/wk x 10 weeks), $50,000 for his medical bills, untold thousands for pain and suffering, and untold thousands for disability (his limp). The aggregate amount could easily run into hundreds of thousands of dollars. So returning 75% of the workers compensation benefits would not be a barrier to pursuing the personal injury case. All things being equal, a personal injury case is worth multiples of a workers compensation claim because of the additional non-economic categories of damage (ie. pain and suffering and disability) and because there are no caps in a personal injury case (while workers compensation pays 2/3 of average weekly wage for temporary benefits, and 60% of average weekly wage up to certain maximal amounts for permanent partial disability.
Rely on Experienced Personal Injury Attorney
When a client presents herself to Lipkin & Apter with a workers compensation claim, we always consider whether there could be a personal injury case. With over 55 years of combined legal experience in the field of accident law, we know how to obtain the largest amount of compensation possible for our clients, available under the law.