Workers’ Comp or Personal Injury: Which Type of Claim Should You File?

If you have both options available, it can be confusing to decide whether to file a personal injury or workers’ comp claim.

According to legal experts, you don’t have a choice in some cases. Federal laws protect fellow workers from most personal injury claims in the workplace. In those cases, you are limited to filing workers’ comp claims against your employer because they bear the ultimate responsibility for workplace safety.


Most employers are required to carry workers’ comp insurance, but there are some exceptions. If your employer doesn’t carry workers’ comp, you can sue the party responsible for your accident and injuries. Unfortunately, most of your fellow workers probably don’t have many resources or liability insurance coverage, so most accident victims choose to sue the entities they work for.

Workers’ Comp Vs. Personal Injury Claims

Workers’ comp is almost universally available, and the insurance covers personal injury medical bills, lost wages and property damage. However, there is no workers’ compensation for pain and suffering, punitive damages, and other non-economic claims. So instead, you file your claim against your employer for limited benefits like medically related expenses and a percentage of lost wages during your recovery period.

However, you can seek full compensation in personal injury claims for mental and physical damages. Mental damages might include emotional distress, pain and suffering, punitive damages, loss of pleasure in formerly favorite activities, and loss of consortium, which refers to sexual activities with your partner.

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Other differences between personal injury and workers’ comp claims include the legal basis of your claim. All workers’ comp claims are made on a no-fault basis. Still, personal injury claims require proving the plaintiff’s fault for the accident – either deliberate or accidental – and a duty of care based on normal expected behavior.

Deciding which claim to file – or deciding to file both a personal injury and workers’ comp claim – is a decision best made after meeting with your attorney. Make sure you talk to a personal injury lawyer with experience in personal injury claims and workers’ comp claims before making any decision. Your attorney can help you get the maximum compensation based on your case details.

Can I File a Personal Injury Claim Against an Employer?

In most cases, you can’t file personal injury claims against an employer. That’s why workers’ comp insurance was developed: to manage the difficulties of dealing with multiple injury claims. However, according to the legal community, there are cases when you can file a personal injury claim against your employer or a third party who is not an employee or licensed independent contractor. Your attorney will explain which is what depending on your accident’s circumstances.

If the third party contributed to an injury, you could sue the employer for workers’ comp and the third party for other damages that workers’ comp doesn’t cover. You can also sue your employer who is primarily responsible for extreme negligence or deliberate safety violations left specifically to cause you harm.

Workers’ Comp Benefits

Workers’ comp benefits last until maximum medical improvement has been achieved. That leaves you open to applying for full or partial disability if you can no longer work or perform your full duties. Workers’ comp benefits cover these situations:

  • Vocational rehabilitation services
  • Full or partial wage replacement
  • Medical expenses until the maximum medical improvements have been achieved
  • Full wage replacement if found permanently disabled
  • Emotional damages caused by scarring and disfigurement
  • Loss of enjoyable activities

Making a Final Decision

In many cases, you can file both types of claims if a compensable work injury occurred due to the negligence of a third party such as a supply driver or a third-party building inspector. Pursuing both claims allows you to get compensation for all your compensable injuries. Your attorney will fight for your rights and pursue compensation on your behalf by conducting settlement negotiations.

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