Workers Compensation Vs. Personal Injury

If you have ever wondered about the difference between a workers compensation claim and a personal injury claim, this article will explain some of the main differences.

Finding Fault and Establishing Liability in Personal Injury Claims:

Personal injury claims are based on fault.  In order to maintain a successful cause of action in a personal injury case, the plaintiff must be able to establish that the accident and resulting injuries occurred as a result of the negligence of another party or parties. In the simplest terms, negligence is defined as a failure to exercise the care toward others which a reasonable or prudent person would do in the circumstances, or engaging in conduct that a reasonable person would not.  Generally, when making a claim for damages based on an allegation of another person’s negligence, the plaintiff must prove the following:

  1. That the party alleged to be negligent had a duty to the plaintiff.
  2. That the defendant’s action, or failure to take action, was negligent. Meaning, the defendant breached the duty of care otherwise owed to the plaintiff.
  3. The damages were caused, or proximately caused, by such negligence.

Establishing Entitlement to Workers Compensation Benefits in Work Comp Claims:

Workers compensation claims do not involve such a fault finding component; nor are the above numbered factors applicable to a workers compensation claim.  In workers compensation claims, the “plaintiff,” is referred to as the “claimant.”  The criteria for maintaining a successful workers compensation claim is to establish the following:

  1. That an accident occurred in the course and scope of employment.
  2. That the work related accident resulted in injuries suffered by the claimant.
  3. That the work related accident is the major contributing cause of the claimant’s need for medical treatment.

Personal Injury and Work Comp Differences in Damages:

Another major difference between personal injury and work comp claims is found when evaluating the potential settlement value.   The method for determining the value of a personal injury case and the method for determining the potential value of a workers compensation case are entirely different.  For example, a personal injury claim can gain value as a result of the injured party undergoing expensive medical procedures.  The more medical treatment a personal injury plaintiff undergoes, the more exposure exists for an insurance company in regard to that claim.   Past medical treatment does not increase the potential settlement value of a workers compensation claim.  Furthermore, settlements of workers compensation claims are voluntary.   Meaning, the work comp carrier cannot force you to settle for a specific amount and you cannot force the comp carrier to settle for a specific amount. In a personal injury case, the ultimate goal is to reach a settlement.   If a settlement cannot be agreed upon in a personal injury case, the plaintiff is left with the option of going to trial.  If a trial occurs in a personal injury case, a jury could determine the amount of monetary damages the plaintiff is entitled to receive.  In complete contrast with workers compensation claims, there is no such option of going to trial over the amount of monetary damages.  In a workers compensation claim, if a settlement is something that both parties wish to discuss and a figure is agreed upon, then and only then, will a settlement take place.  If the amount offered by a work comp carrier is not an amount they are willing to pay, no judge or jury will ever take part in determining what amount a work comp carrier must pay. Workers compensation claims have their most potential settlement value when a doctor authorized by the work comp carrier recommends a particularly costly type of treatment, and the injured employee decides to discuss the option of settlement with the work comp carrier as opposed to, AND BEFORE, undergoing the recommended treatment.  If the injured employee decides to undergo the treatment, the value of their case declines.    The reason for a decline in value if the injured worker undergoes the treatment is because after such treatment, the work comp carrier has just paid the health care professionals and facilities involved in performing the treatment rather than paying an amount to you in the form of a settlement.  Another way to consider this difference is to view the circumstance from the work comp carrier’s perspective.  The work comp carrier will either pay an amount to settle the case putting the money in your pocket.  Or, the work comp carrier will pay for the treatment, putting the money in the doctor’s pocket.   You cannot have both – the medical treatment and a settlement worth what it would have cost the work comp carrier to pay for the medical treatment you just underwent.  If a doctor recommends a generally costly type of treatment, the work comp carrier knows they will either have to pay for the treatment, pay to defend a denial of the surgery, or pay the claimant a settlement if an agreement can be reached.  In any of the aforementioned scenarios, the carrier is facing future cost exposure.

Damages Available in Personal Injury Claims but not in Workers Compensation Claims:

Personal injury claims can include damages such as pain and suffering, loss of enjoyment of life, loss of consortium, and various other damages.  Such damages are referred to as “non-economic,” damages.  Such, “non-economic” damages are not included in personal injury settlements as often as people may believe.  Non-economic damages are awarded in a limited number of personal injury cases that involve particularly serious personal injuries.  In order to recover these kinds of damages, the injured party has to show that he or she suffered a permanent injury, significant scarring or disfigurement, or death. [1]

If a workers compensation settlement amount is being negotiated, such non–economic damages are not considered.  Workers comp carriers are not obligated to compensate an injured worker for pain and suffering, loss of enjoyment of life, inconvenience, or any of the other non-economic damages otherwise available in personal injury case.  This fact remains true regardless of how serious an individual’s work injury is.   Because the work comp carriers do not have to pay benefits that would be considered non–economic, they do not take any such factors into account when determining the value of a case for settlement purposes.   This particular difference is one that frustrates many people.  You could sustain the same injury on the job as you happen to sustain as a result of the negligence of someone else, yet the potential value is entirely different if it’s a work comp claim.

If you attempt to settle your work comp claim on your own, all we can say is good luck.  We are not suggesting you cannot reach a settlement of your work comp claim without representation.  Work comp carriers will be happy to settle with you without an attorney.  We would even be willing to bet that the less scrupulous adjusters would tell you that they will pay you more without an attorney.   The truth is that on average, work comp carriers pay three times more in claims when a person is represented.

Fortunately, attorneys’ fees in work comp claims are only about one third of the amount of the amount of attorneys’ fees in personal injury cases.  For example, a personal injury case that settles for $10,000.00 without filing suit, results in an attorney’s fee of $3,333.00.   A workers compensation claim that settles for $10,000.00 results in an attorney’s fee of $1,750.00.  Attorneys’ fees in workers compensation claims are calculated by applying a formula set by the Florida Legislature.  The formula is reflected in Fla. Stat. 440.34 [2]. It controls the amount of the attorney’s fee in a work comp case.  No attorney fee can be awarded that does not comply with the formula.  In summary, the attorney fee formula provides that 20% of the first $5,000.00 is due as an attorney’s fee; 15% of the second $5,000.00; and 10% of the remaining amount.

No settlement ever occurs in a workers compensation case without your full knowledge and consent.  We have undertaken representation of people who discharged their prior attorney because their prior attorney spoke of nothing but settlement.  We’ve even heard clients tell us that their former attorney was entirely insistent upon them settling their work comp case.  We leave that decision entirely up to you.   Settlement of a work comp case involves many factors.  It may not be in your best interest.   We take pride in the fact that a detailed discussion of the pros and cons takes places with every client over the issue of settlement.

The discussion results in you being able to make an informed decision.  Furthermore, no work comp case settles without you knowing exactly what you would net BEFORE agreeing to settle.  If a work comp settlement is reached, it is because the work comp carrier has reached a point where they are offering the most they are willing to pay.  Based on that figure, we calculate the attorney’s fee using the formula.  The settlement amount minus the attorney fee equals the net to you.  The ONLY other amount that can factor in is if you have costs that have been paid on your behalf during the claim.  Representation in a workers compensation case is on a contingency fee basis.  You do not owe attorneys’ fees or costs unless a settlement is reached.  Attorneys’ fees and costs can also be recovered directly from the work comp carrier as a result of their denial or delay of a benefit you’re entitled to.  Either way, you are not obligated to pay attorneys’ fees or costs in order for Dolman Law Group to undertake representation.

Without representation, how would you know what your case is worth?  If you think you can gauge the value based on what your friend said they settled their work comp case for, think again.  Settlement in one work comp case for a specific type of injury does not result in a set figure for settlement in any work comp case; even one involving the same injury.  The employer involved makes a difference.  The carrier involved makes a difference.  So do factors such as the date of accident, the opinions of the treating physicians, the average weekly wage, and whether the individual had health insurance.  An attorney’s knowledge of the work comp carrier, the future exposure, and other factors related to settlement all work to your benefit.  Contact us for a free consultation at (727) 853-6275.

Dolman Law Group
5435 Main Street
New Port Richey, FL 34652
(727) 853-6275