Do I Need a Workers Comp or Personal Injury Lawyer?

If you sustained injuries due to a work accident there is a chance you may need a personal injury attorney in addition to a workers’ compensation lawyer.  The personal injury attorney will work to seek compensation from any negligent third parties, while the workers’ comp attorney will work to make sure that your employer’s workers’ compensation insurance company pays for all the medical treatment and lost wages that at you are entitled to.

If you’ve suffered an injury while working, it is best you consult with a personal injury attorney to help determine whether you are eligible to file a personal injury claim, a workers’ comp claim, or both.  At the Law Offices of Prosper Shaked we focus on personal injury cases, but much of our work involves involves work-place injuries.  In these types of cases, we work together with your workers’ comp attorney if you already have one or we find you the best workers’ compensation lawyer for your case so that you can make the best recovery possible.

You should never trust a workers’ comp lawyer to handle your personal injury case and you should never trust a personal injury attorney to handle your workers’ compensation case. These fields of law are completely different and you will reach a better outcome if you hire experts in each field, not a lawyer who says they do both.

Understanding the Difference Between Workers’ Compensation and Personal Injury Cases: Explained by our Florida Personal Injury Lawyer

After you have been hurt in the workplace your initial thought may be to file a workers’ compensation claim.  This is for good reason.  Workers’ compensation is advertised as a “no-fault” solution to paying medical bills, rehabilitation costs, and lost wages resulting from a workplace accident.  Once the claim is submitted, an employer forwards it on to the carrier who then begins the process of reviewing the claim.  Compensation is usually received in weeks, sometimes days.  While this sounds like an ideal solution, oftentimes a personal injury action is better because it will offer significantly more compensation.  Unfortunately, injured workers who file a workers’ compensation claim first without speaking to an experienced personal injury lawyer in Florida may be waiving their rights to file a personal injury action to obtain more compensation.

There are some big differences between workers’ compensation and personal injury claims, all which can greatly affect the amount of compensation that you may be entitled to under Florida law.  Learn how we can help you during a FREE consultation by dialing (305) 694-2676.

Understanding Workers’ Compensation in Florida

According to the Florida Department of Financial Services database, in 2020 there were over 63,000 workers’ compensation claims filed in Florida resulting in over $388 million in total medical payments.  The intent behind workers’ compensation is provided for right in the statute under Florida stat. section 440.015 which provides that “[i]t is the intent of the Legislature that the Workers’ Compensation Law be interpreted so as to assure the quick and efficient delivery of disability and medical benefits to an injured worker and to facilitate the worker’s return to gainful reemployment at a reasonable cost to the employer.”

To achieve this end, Florida workers’ compensation law is set up as a “no-fault” system.  This means that an injured worker only has to establish the injury occurring within the scope of employment or that the injury was work-related (i.e., condition, disease, or repetitive injury).  Florida courts have held that, in allowing employees to have “this no-fault system, the employee gives up a right to a common-law action for negligence in exchange for strict liability and the rapid recovery of benefits” (Turner v PCR, Inc., 754 So. 2d 683 [Sup Ct, 2000]).

But while the benefits of workers’ compensation are that it offers fast payments and efficient claim handling without having to establish liability or negligence, oftentimes the benefits actually paid are quite low.  For instance, the Florida Department of Financial Services database revealed some staggering figures above, but it is important to note that the average medical payment was just $11,688 and the average settlement was $15,289.  In terms of normal personal injury actions, these payouts are low.

Understanding Personal Injury Actions in Florida

While a workers’ compensation claim is premised on a workplace accident, or on injuries or conditions that are work-related, a personal injury action could be against any individual, business, government agency, or other actor.  This means that a personal injury action could be against more than just in your employer or co-workers, but against anyone in the world that contributed to your harm.

Unlike workers’ compensation, personal injury actions require you to prove fault or liability.  This is generally done through a cause of action (claim) for negligence or a claim for an intentional tort such as a battery.  Some of the most common types of personal injury actions include the following:

While personal injury cases require an extra step of proving fault, oftentimes it is worth it because workers’ compensation benefits are much more limited.  The workers’ compensation system limits recovery to certain type of economic damages, which include:

  • Medical treatment
  • Lost wages – Both past and future lost wages if you are unable to return to the same or similar type job.
  • Vocational training and rehab – Many times individuals are unable to continue the type of work they were performing when the injury occurred. Workers’ comp insurance companies will pay for training and rehabilitation so that the victim can transition into a new career.
  • Death benefits for the legal survivors of an individual who died as the result of a workplace accident.
  • Permanent impairment benefits

However, personal injury cases allow victims and their families to recover a wider range of compensation beyond just economic damages.  Plaintiffs in personal injury lawsuits can seek non-economic damages which include pain and suffering, loss of enjoyment of life, emotional distress, and other damages that are not readily calculable.

As a result of this, personal injury cases tend to resolve much higher than workers’ compensation cases.  Although there are no official state or federal statistics, Lawyers.com and Nolo.com provide that the average compensation in a settlement or court award is $52,900.  This is almost three and a half (3.5) times more than a workers’ compensation settlement according to the Florida Department of Financial Services database.

Why is it Important to Know the Difference Between Workers’ Compensation and Personal Injury Claims?

Besides the large difference between the average payment, there is another very important aspect to realize between these two types of claims: Most times you cannot file both.

This is because workers’ compensation is typically considered to be the “exclusive remedy” for an employee who suffers a workplace accident or work-related injury.  This means that an employee cannot commence both actions and “double dip” to have two recoveries.

This is because of the purpose of workers’ compensation.  It functions to not just afford employees a quick and efficient system, but also to shield employers and co-workers from crippling lawsuits.  Thus, an employer must surrender to the automatic liability of workers’ compensation (no-fault system) in order to shield itself from future negligence lawsuits.

An individual who is hurt in a workplace accident that does not realize this could be opting for less compensation and falling into the purpose of workers’ compensation, where in realty the individual may have a better claim under personal injury principles.

Examples of When a Workplace Injury Could Sued as a Personal Injury Action Instead

Even though not every workplace injury can be commenced as a personal injury action in Florida, there are many instances where an injury occurring within the scope of employment could be sued as a personal injury case. In these situations, the employee may be able to file a workers compensation case in addition to a personal injury case.

Here are some important examples:

  • Motor vehicle accident occurring while in the scope of employment due to a third-party driving negligently.
  • A slip and fall while delivering a product at a third-party’s home or business.
  • An intentional assault, battery, or sexual offense against a worker.
  • Defective products that cause an injury at work, where there is a claim against the manufacturer of the product.

Additional Exceptions to Workers’ Compensation in Florida

There are also situations in Florida where an injured worker could be entitled to commence a lawsuit against his or her employer or co-worker.  These exceptions are incredibly rare and often hotly contested.  Some of the most common examples include the following:

  • Where an employer was required under Florida law to have workers’ compensation, but the employer failed to carry same
  • For intentional acts of violence or torts against an employee
  • Where “the employer must either exhibit a deliberate intent to injury or engage in conduct which is substantially certain to result in injury or death” of a worker (Fisher v Shenandoah Gen. Const. Co., 498 So.2d 882 [Sup Ct, 1986]).
  • Your employer denied your workers’ compensation claim in bad faith or failed to submit your workers’ compensation claim in a timely manner to the carrier
  • Your employer manufactured the product that injured you, giving rise to a products liability claim
  • You are not an employee, but actually an independent contractor, and
  • Several other rare circumstances that should be evaluated by an experienced personal injury lawyer in Florida.

Not Sure if You Should File a Workers’ Compensation Claim or a Personal Injury Action?  Ask for a FREE Consultation to Learn Which May be Better for You and Your Family

This area of law is incredibly complex.  In fact, workers’ compensation and insurance law are two separate classes taught for an entire semester each in law school, sometimes even longer.  Do not try to understand what your rights may be under Florida law without skilled help.  Ask an experienced personal injury lawyer to learn what your options are and which may be the best for you and your family.

We offer FREE consultations and have operators standing by to speak with you at any time of the day. Call (305) 694-2676 to schedule your consultation. Together, we can get through this.

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