Author: Jon Wood

Imagine this scenario: You’re injured on the job in a car accident, and it was the fault of the other driver. Is this a workers’ compensation claim or a personal injury claim? Technically, it can be both, and in this blog post, I am going to break down the difference between the two and how they overlap in Virginia. Understanding the law will help you protect your rights.

What’s a third-party claim?

Because you were hurt while performing your job duties, this could qualify as a workers’ compensation claim. But since the injury was caused by someone unrelated to your place of business, it could also qualify as a personal injury claim – these are called “third-party claims.” You can pursue both types of claims simultaneously, but there are fundamental differences and important overlaps between the two systems.

What is the difference between a workers’ comp claim and a personal injury claim?

As skilled attorneys with substantial experience handling both types of claims, the lawyers at Reinhardt | Harper | Davis can explain the details and nuances.

Workers’ compensation claims in Virginia

• This is intended as a “no-fault” system, which means that as long as an employee’s injury occurs in the course of their employment and arises out of their employment, it should be covered under the workers’ compensation system. To be covered, the injury does not have to be caused by the negligence of the employer or a co-worker.
• The injured party is referred to as a “claimant.”
• Workers’ compensation claims cover medical treatment for as long as needed, two thirds of their wage loss for potentially up to 500 weeks, and potentially permanent damage to an injured body part.
• There is no recovery for pain and suffering.
• If the case proceeds to litigation, you will go to a “hearing” instead of a “trial.”
• The “judge” at the hearing is called a “deputy commissioner.”
• You do not actually file a lawsuit in court. Rather, workers’ compensation claims start by filing a “claim for benefits” with the Virginia Workers’ Compensation Commission (a special “court” that hears workers’ compensation claims).

Personal injury claims in Virginia

• This is a fault-based system where recovery is only possible if the injured party can prove that the other party was “negligent,” i.e., they did something wrong.
• The injured party is referred to as a “plaintiff,” and the negligent party is the “defendant.”
• Plaintiffs are entitled to recover for more elements of damages and losses in personal injury cases. For example, recoveries are broader in this system – plaintiffs are entitled to compensation for:
  • Full amount of lost wages
  • Past medical expenses
  • Future medical expenses
  • Past and future pain and suffering
  • Past and future inconvenience
  • Scarring and disfigurement
  • The impact the injuries have on their life

What types of cases often have a crossover of the two systems?

While an injury at your place of business is usually a workers’ compensation-only claim, there are several crossover scenarios where a negligent third party could be at fault.

This includes:

• Work-related car accidents: These are the most common. Tractor-trailer drivers, mail carriers, and those who deliver are constantly on the road.
• Injuries caused by contractors or subcontractors – not employees of the company you work for
• Defective equipment: This can be faulty factory parts, loose staircase railings, etc. These are classified as “product liability’ cases.
• Unsafe property owned by a third party: For example, you are working on a job site that belongs to another company or owner, and you fall on slippery floors, or get hit by a falling tree branch.
• Medical malpractice by the treating physician

You cannot sue your employer or your coworkers for injuries that happen at work unless your employer failed to carry workers’ compensation insurance. Workers’ compensation insurance is meant to cover injured employees. However, you may be able to pursue a personal injury claim against a third party.

Common mistakes injured workers make

Combined workers’ compensation and personal injury claims are complicated. Dealing with them alone can feel impossible. Partnering with a seasoned, experienced attorney is important in making sure you’re doing everything correctly and maximizing your recovery in both cases.

Reinhardt | Harper | Davis specializes in combined cases with personal injury and workers’ compensation. Below are some common mistakes injured workers make, because they aren’t aware of the nuances in the law.

• An injured worker assumes workers’ compensation is the only remedy, because they were working at the time – even if a third party was at fault.
• An injured worker accepts a quick settlement for a workers’ compensation claim without understanding how it will affect their personal injury case, causing problems that can’t be fixed by an attorney later
•  An injured worker accepts a personal injury settlement and completely destroys their right to recover under the workers’ compensation system. Under Virginia Law, if you settle your personal injury claim without the consent of the workers’ compensation insurance carrier, you forfeit your right to any further workers’ compensation benefits.
• An injured worker accepts a settlement too quickly without realizing the seriousness of their injuries. Insurance companies often tempt injured workers with a quick lump of cash before they realize that surgery or rehabilitation is necessary. And once a settlement is accepted, it cannot be reversed.
• Many injured workers do not account for a potential lien the workers’ compensation carrier has against their personal injury case. What is a lien? We break it down for you below.

What is a lien/subrogation?

If you ever file combined claims, you need to know how they will affect one another.

In Virginia, if your employer has three or more employees, that employer is required to carry workers’ compensation insurance. This mandate applies to full-time, part-time, seasonal, and temporary workers. Payment of benefits under the workers’ compensation claim allows the workers’ compensation carrier to pursue a lien against any third-party personal injury case related to a workplace accident.

If your employer’s workers’ compensation insurance provided you with coverage for medical bills and lost wages, they can recover some of the money from your third-party settlement or verdict. If your injury turns out to be someone else’s fault, the workers’ compensation carrier doesn’t want to pay for it.

Leins cover:

• Paid medical expenses
• Wage benefits
• Permanent disability benefits
• Final settlements
• Death benefits

Unfortunately, Virginia’s insurance system is very conservative and business-friendly, with policies that often prioritize companies over their injured workers. Insurers often have the right to be reimbursed from the personal injury verdict or settlement – even before the injured worker receives their funds.

A lien only applies to your recovery from the third-party suit, so you won’t have to pay anything out of pocket. Still, an experienced workers’ compensation attorney can often negotiate to reduce or eliminate the lien to increase the amount of your recovery and maximize your recovery in the combined cases.

Finding the right attorney for your crossover case

Seasoned lawyers understand that settling a personal injury case can affect your future workers’ compensation benefits, and settling a workers’ compensation case can affect your personal injury benefits. Because timing matters, and because statements in one case can affect the other, coordination between your two attorneys is critical. Ideally, injured workers can benefit from having one attorney who can handle these complex cases. That’s where we come in.

Reinhardt | Harper | Davis has mastered the special niche for combined personal injury and workers’ compensation cases, and can handle them both. Staffed with award-winning workers’ compensation and personal injury attorneys, our teams collaborate on these cases to ensure that clients get the full recoveries they are entitled to.

If you have been injured in a work accident, and the injury was caused by a negligent or reckless third party, you have more options than you think. For a free case evaluation, don’t hesitate to call Reinhardt | Harper | Davis today, either online or by calling at 800-884-9507.