If you’ve been injured on the job in Virginia, chances are you will be eligible to receive workers’ compensation. In limited circumstances, you may also have a personal injury claim. Read on to find out the answers to two important questions: What is the difference between personal injury and workers’ compensation? When might both apply to a work-related injury?
Workers’ Compensation Basics
Workers’ compensation is paid under an insurance plan that your employer provides. The Virginia Worker’s Compensation Act requires any employer with two or more employees to carry the insurance, which covers work injuries and occupational diseases.
To be covered by the insurance, an accident must happen while the worker is doing something on behalf of his or her employer. The injury must occur at work or during a work-related function, be caused by a specific work activity, or have happened suddenly at a specific time. The insurance does not cover injuries outside the scope of employment, those caused by the employee’s own willful misconduct, or injuries that occur gradually or from repetitive trauma.
When injuries are covered by workers’ compensation insurance, the law prohibits the employee from filing a civil action against the employer or fellow employees for the injuries. So, when a worker receives workers’ comp, he or she cannot also file a personal injury lawsuit against the employer or another employee. The insurance is the only source of financial reimbursement from the employer.
Fault, carelessness, and negligence are irrelevant in a workers’ comp case. It doesn’t even matter if the employee did something that caused the accident, unless the employee’s conduct qualifies as willful misconduct.
Virginia Personal Injury Law
In Virginia, personal injury claims are also subject to a number of different statutes, as well as judicial case law. One of the primary requirements for any personal injury claim is establishing the negligence or fault of the person who caused the injury. This element is one of the primary differences between a personal injury claim and a workers’ compensation claim.
There is an additional fact that must be proven in a Virginia personal injury claim: The person making the claim cannot have contributed in any way to his or her own injuries or be at fault for the accident in any way. The legal principle is called contributory negligence. If the individual making the personal injury claim shares fault for causing the accident, he or she cannot recover from another person, even if that other person was more at fault. Virginia law is different from laws in other states on this issue.
Personal Injury Claims for Work-Related Injuries
While a worker cannot file a personal injury claim against his or her employer for work-related injuries under the workers’ compensation law, there are situations where the worker may be able to make a personal injury claim against a third party. In those situations, the personal injury claim will be separate from and different than the workers’ compensation claim.
Generally, work-related situations that give rise to a personal injury claim are those where injuries occur from car and truck accidents, premises liability, and product liability. Here are some examples:
- Motor Vehicle Accidents: If you are the driver or a passenger in a car or truck while you are working, and you are injured in an accident, you may have a personal injury claim against the at-fault party. Whether you have a claim will depend on the circumstances of the accident and how Virginia auto accident law applies.
- Premises Liability, including Slip-and-Fall Accidents: If, while you are working, you are injured in an accident on business premises not owned or controlled by your employer, you may have a personal injury claim for premises liability. Common premises accidents include slip-and-fall cases.
- Product Liability: If you use machinery in your work, and you suffer an injury while you are operating the machinery, a product liability claim may result if the machinery was defective and the defect caused your injury.
Damages in Workers’ Compensation and Personal Injury Cases
In both workers’ compensation and personal injury cases, the amount of damages you can recover is determined by the applicable statute. However, damages is another area where the two types of cases differ significantly.
Workers’ compensation benefits generally include payment for only economic losses, such as:
- Lifetime medical benefits
- Wage loss for up to 500 weeks
- Permanent partial or total disability
- Death benefits
In contrast, damages that may be available in a personal injury claim include both economic and non-economic compensation. That means monetary recovery in a personal injury claim may be greater than the amount received under workers’ comp. The additional elements that may be included in a personal injury claim include pain and suffering, loss of earning capacity, wage loss for a greater period of time, and sometimes punitive damages.
In situations where both a workers’ compensation claim and personal injury claim can be filed, it does not mean that you receive payment twice. If damages are recovered in a personal injury case, the workers’ compensation insurance company is entitled to recover amounts paid for the injuries that are also part of the personal injury compensation. In addition, personal injury settlements generally must be approved by the workers’ compensation carrier to avoid losing future workers’ comp benefits.
Making a Personal Injury Claim for a Work-Related Injury
Situations that have the potential for filing both a workers’ comp claim and a personal injury claim are extremely complex legally and factually. There are also practical considerations that need to be taken into account in deciding whether to pursue a personal injury claim.
If your injuries are minor and short-term, and you are fully compensated by your workers’ comp benefits, there may be no advantage in filing a personal injury claim. However, if you suffer long-term, significant injuries that cause pain and suffering and permanent disability, there may be reasons to consider filing a personal injury claim.
When your work-related injuries are substantial and a third party may be at fault, you should discuss your case an experienced personal injury attorney. Your lawyer will investigate the accident, evaluate the facts, and determine whether another person can be held responsible for your injuries. Talking with a lawyer is the only way to find out with certainty whether a personal injury claim is a viable option.
Talk With an Experienced Virginia Beach Personal Injury Attorney
If you’ve suffered significant injuries in a work-related accident for which a third party may be legally responsible, Virginia Beach personal injury attorney Jeff Brooke is here to help. The Jeff Brooke Team will investigate and evaluate your case and help you decide whether to pursue a personal injury claim. Contact us by phone at (757) 552-6055 or by using our online contact form.
Jeff Brooke is a personal injury attorney devoted to helping individuals who have suffered serious and catastrophic injuries or lost a loved one as a result of someone else’s negligent and careless actions. The Jeff Brooke Team serves all of southeastern Virginia. The firm helps clients in the Greater Tidewater and Greater Hampton Roads areas, including in Virginia Beach, Norfolk, Portsmouth, Chesapeake, and Chesterfield. The Jeff Brooke Team also handles cases in northeastern North Carolina, including the Outer Banks.