If you are injured at work there are two possible sources for compensation, and they are governed by two different sets of rules. Knowing which avenues are open to you (or which ones aren't) can mean the difference between recovering what you need, or only a fraction of that.

The fault doctrine is completely different

Workers' compensation is a no-fault system, meaning that you don't need to prove that your employer was at fault in order to recover benefits. Your benefits simply come from the fact that you were injured at work, and you reported it. It's an expedited, near-certain method of receiving coverage for medical expenses and a partial wage replacement while you are incapacitated. A personal injury lawsuit is the exact opposite - in order to recover damages in civil court, you need to prove that some entity owes you a duty of care, that they breached that duty, and that their breach resulted in your damages

This difference is extremely important because it defines what you have to do in order to recover benefits. The workers' comp claim is an almost guaranteed outcome with modest benefits. The civil lawsuit offers much greater financial recovery, but it is much harder to succeed at, especially in terms of proving another party's negligence.

...but there are other limitations to workers' comp.

One of these limitations is the exclusive remedy doctrine, which dictates that an employee who receives workers' compensation benefits is giving up their right to sue their employer for damages related to the injury. Employers are protected from civil litigation, and employees gain the assurance of no-fault benefits.

The difference in benefits is significant.

According to the National Safety Council, the cost of injuries in the United States totaled $167 billion in 2021, with $41,757 being the average cost per injury after medical consultation. The vast majority of these costs are not covered by workers' compensation, which normally only pays for medical expenses and TTDB (Temporary Total Disability Benefits), which only replace about two-thirds of lost wages. On the other hand, a personal injury claim can cover TTDB, PPD (Permanent Partial Disability benefits), and PTD (Permanent Total Disability). TTDB in a personal injury claim can either be a percentage of lost wages or 100% if the injury renders the claimant unable to work in the future. The damages in a personal injury suit for pain and suffering and loss of consortium are also not available in a workers' compensation claim. While personal injury claims require significantly more work and evidence, especially when it comes to proving another party's negligence, the potential financial recovery is much higher, especially in cases of extreme negligence.

...and documentation will determine the outcomes of both

When you are dealing with workers' compensation claims or personal injury lawsuits, documentation serves as the backbone of everything else. Both insurance carriers and defense attorneys will look for loopholes and inconsistencies, and you don't want to give them anything they can use against you. By hiring a workers compensation attorney at Briskman Briskman & Greenberg early in the process, you can ensure that all necessary documentation is completed correctly.

Do the following as soon as possible after your injury:

Make sure to document the incident for your employer in writing. Many systems require the injured worker to notify the employer in writing within 30-45 days, and failure to do so can result in loss of benefits, regardless of the severity of the injury.

Take pictures of the hazard before it is repaired or removed. Broken mats and spills are common hazards that are typically cleaned or replaced once reported.

Get the contact information from witnesses of the incident or unsafe working conditions, and have them sign a statement if you can.

Request a copy of your initial medical examination and be sure to note what the treating physician wrote down. This documentation could be critical to both proving that your injury was work-related and establishing your baseline for any future disputes.

Your employer is required to keep OSHA 300 logs of work-related injuries. Request a copy of yours or let your employer know if any information was incorrect or missing.

Preexisting conditions can become a major issue if you are trying to obtain benefits, as insurers will try to wean you off of any medications, deny treatment, or dispute the extent of your injuries. Request documentation for any preexisting conditions you have that involve the part of the body or the medical concern that you are now facing. It is always better to have it on the table so that you can prove that the new condition is significantly different or worse than what you were dealing with before.

The third-party claim: how both paths can intersect

What many injured workers don't realize is that both workers' compensation and a personal injury claim can be pursued at the same time. When a third party is involved, a personal injury claim can be brought against them separately while the workers' comp claim is being processed.

While the exclusive remedy doctrine prevents you from suing your employer for damages, it doesn't extend to other entities

If you were hit by a third-party motorist or injured by an equipment malfunction, that third party can be sued in addition to seeking benefits from your employer's workers' compensation plan. You can accept the benefits from your employer and then seek full damages via a personal injury claim against the third party.

The connection between the workers compensation claim and the personal injury lawsuit comes in the form of subrogation, which means that the workers compensation carrier has the right to reimbursement from the third-party settlement once benefits have been paid. Understanding how subrogation will affect third-party claims is essential to ensuring that you don't lose out on wages or medical benefits that you are entitled to, particularly if the insurance company attempts to deduct money from your third-party settlement.

Third-party incidents can also include subcontractors on the job site, property owners whose employees you're working with, or motor vehicle crashes that occur as you're traveling to or from work. These claims can require even more documentation than normal, as they serve as stand-alone personal injury lawsuits.

Medical treatment, guidelines, and doctor disputes

While employers or their insurance carriers typically decide which medical professionals you will see, it's still important to document everything thoroughly and know what to do if the other party challenges your treatment.

Many workers' compensation systems allow either the employer or the insurance company for the employer to choose the treating physician, the one who will be treating your workplace injury or illness. The opinions of this physician can be critical to the outcome of the case. The insurance company also has the legal right to request an Independent Medical Examination (IME) by a doctor of their choosing. Because these doctors are typically hired and paid for by the insurance company, their findings will often be different from those of your treating physician.

If the insurance company requests an IME, it is crucial that you don't just ignore it. A negative IME can be used to discredit your entire claim, which is why records and documentation are so important. When you go into the evaluation with a thorough, well-documented paper trail, the IME doctor won't be able to deny your claim on technicalities.

When it comes to personal injury plaintiffs, choosing a physician can be a deciding factor in the success of your claim, as well as how much you can expect to receive. Both sides, the plaintiff and the defendant, will look for the most qualified medical professional in order to testify at trial or submit medical records to the court. Documentation, again, is going to be essential. Save every note your doctor has given you and keep track of every physical therapy appointment you've had. Everything you write down could be used as evidence later on. When it comes to workers' compensation, keep a calendar with every PT appointment you have. When it comes to your injuries, note every instance of limping, or inability to lift things that you had been able to lift before the incident.

When it comes to the workers' comp system, Maximum Medical Improvement (MMI) is usually the point when, according to your doctor, you won't be able to improve any further. At that point you are released to another doctor who determines whether or not you are eligible for Permanent Partial Disability (PPD) or Permanent Total Disability (PTD) benefits. This doctor's opinion is going to be crucial as well, and it's going to hinge on those same notes and documentation that you've saved. The insurance company can use any inconsistencies and vagueness in your records to argue that you are not permanently disabled.

Surveillance: the constant watchful eye

Insurance adjusters and defense attorneys may monitor claimants for anything they can use to discredit them. Everything you do on social media can potentially be used against you, so it's best to keep your activity limited and careful. If you post pictures of yourself lifting heavy bags, or pictures with relatives, a defense attorney or insurance adjuster can use it to prove that you're not as hurt or incapacitated as you claim.

This is part of how claims adjusters do their jobs. When it comes to both workers' compensation and personal injury claims, your social media activity can become evidence in court. That's why you should treat it as such. In fact, your physical activity should be limited as well. Insurance companies often hire investigators to observe claimants in person

This is why, if your doctor says you can't lift more than 10 pounds, you shouldn't be photographing yourself with a bag of groceries.

Employer retaliation

Filing a workers` compensation claim doesn't give your employer the right to do any of the following to you: fire you, demote you, cut your hours, or change your workload so significantly that it constitutes a hostile working environment. Employer retaliation can happen in many ways and when it does, it's always illegal. In order to prove that retaliation did happen, it's always best to keep a written log of interactions with your employer that change your job status, working environment, or schedule. It's also always best to keep copies of prior performance evaluations if your employer tries to claim that things were always like that.

Employer retaliation can put workers in a bad position that makes claiming workers' compensation benefits nearly impossible. This is especially true if the employer is trying to get the worker to quit voluntarily so they don't have to pay any benefits. Claims of employer retaliation should also be documented as thoroughly and specifically as possible.

Standing at the crossroads

Most employees have a limited understanding of their options when it comes to a work-related injury. They are often led to believe that workers' compensation is the only way forward, and they accept the benefits provided to them by the insurance company as the final payment of their damages. There are exceptions to this, which is why it's a good idea to consult with a workers compensation attorney to understand your options. A third-party claim may be an option, or it may be found that your injury raises new issues regarding the negligence of another party.

Workers' compensation claims are designed to be efficient and straightforward. They're meant to resolve quickly and with minimal cost to the insurance company. However, if you understand the differences between them and personal injury claims, keep a proper paper trail, and consult with an attorney to review a settlement offer, you can make a more educated decision about your future.