September 20, 2017

Legal News You Can Use: Is My Case a Personal Injury or Worker’s Compensation Claim?

WorkersCompAs an attorney who practices both Worker’s Compensation and Personal Injury Law, I find that many people are confused as to if and where these systems overlap. Although there are many similarities between these two areas of law, there are a number of significant differences that make the representation of clients in either scenario unique.

Personal injury claims fall under the broad area of law called torts, and arise out of what is known as the “common law.” The “common law” is derived from the English legal system and is essentially a set of laws and rules that have developed over hundreds of years of court and appellate decisions.

It is a body of law that is constantly changing as courts review prior decisions and either affirm, or modify the decisions that came before. Although there are certain statutes (written laws passed by the State and Federal Legislatures) that govern personal injury actions, by and large most personal injury actions are based on common law decisions.

Specific to personal injury actions, it is the law of the land that all individuals or entities (like businesses) owe a duty to all members of society to act in a way that is reasonable and does not intrude on anyone else’s safety. If a person or entity breaches that duty and someone gets injured, that someone (who is now a potential plaintiff) has a cause of actions against the breaching party (now a potential defendant). In these claims the plaintiff must prove that the defendant is at fault. If they win, they are entitled to recover money for both economic damages (medical bills, lost wages, etc.) and non-economic damages (including pain and suffering).

In Connecticut these claims can be brought in court if the parties cannot agree to a settlement.  There the claims can either be tried before a judge or a jury of six. In the alternative, if the parties agree, the claims can be privately mediated outside the court system. If the plaintiff prevails in his or her claim, most often the damages are awarded all in one shot. No matter what though, eventually every case comes to an end by way of settlement or trial and verdict and very rarely will a plaintiff receive any type of compensation until the case is over.

Although a form of lawsuit, Worker’s Compensation is the exclusive remedy for injuries that occur on the job. Claims are brought before the Worker’s Compensation Commissioner and an injured worker cannot sue their employer at common law.  Why? Because around the turn of 20th Century, with industrial production in America in full bloom, workers injured on the job had the right to sue their employers for injuries on the job. As the advent of the contingency fee allowed people who could never afford it before, access to the courts, and employers pressured the legal system to come up with theories to limit recovery, something had to give.

It was actually employers (who wanted to be able to cap their potential exposure in the event they were sued) who pushed for Worker’s Compensation laws. Under virtually every Worker’s Compensation scheme injured workers are entitled to both economic and non-economic damages. However, a big difference between Worker’s Comp and personal injury is that Comp is a “no-fault” system. An injured worker need not prove that his/her employer was at fault for his/her injuries. He/she need only prove that they were injured while in the scope and course of their employment. How it happened is relatively unimportant.

If the injured worker can establish that, then they are entitled to benefits. But unlike personal injury, what the injured worker is entitled to is entirely dictated by statute rather than the common law. In addition, because it is “no-fault,” whatever they are entitled to, they receive as soon as it becomes due. The trade-off is that there are built in caps on these statutory benefits.

For example, there is a maximum weekly compensation rate you can receive regardless of how much money you make, and irrespective of how badly you are hurt. Likewise, there are statutory rules governing exactly how much pain and suffering you can receive based on a scheme too complex to explain in this brief article. However, unlike a personal injury suit, a Worker’s Compensation case never has to come to an end. Although Comp cases are often permanently settled, neither side is obligated to do so and the claim could remain open until the death of the claimant.

Regardless of which system you are looking at, as someone who has practiced in both areas for almost 25 years, they represent a good faith attempt to make whole those individuals who unfortunately need to avail themselves of these laws. Although far from perfect, they are part of the fairest and most accessible legal system on the planet.

About the author: Attorney Robert B. Keville is a Director at Suisman Shapiro Attorneys-at-Law, the largest law firm in eastern Connecticut.  If you have questions about these topics or other injury matters, he can be reached via email at rkeville@sswbgg.com or by phone at (860) 442-4416.

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