In this video, we’re going to address the question: “what is the best form of compensation if someone’s negligence on the job has injured you?” My name is Matt Eason, and I’ve been practicing personal injury and workers’ compensation litigation for over 25 years here in Sacramento. In this video, I’m going to discuss some of the dynamics between a workers’ compensation claim and a personal injury claim and which is the best compensation for an on-the-job injury caused by someone else is negligence.
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Workers’ compensation is a strict liability system, and under a strict liability system, you don’t have to prove anybody was at fault; anybody was negligent. Really, the basic question is, were you injured arising out of the course of employment? Plain English, were you hurt on the job? If you were hurt on the job, then workers’ compensation kicks in, and in the workers’ compensation system, you receive all of your medical care related to your injury.
Now, the good news and bad news: You don’t pay co-pays. You don’t pay deductibles. You don’t have to pay it up front and get it back from the workers’ compensation carrier. They pay at all. The bad news is they have a lot more rights in dictating the type of care that you get. Likewise, in the workers’ compensation system, if you’re off work for three or more days as a general rule, you’re entitled to two-thirds of your average weekly earnings tax-free for a period of time. The period of time is usually limited to 104 total weeks or until your employer has modified, or sometimes known as “light duty,” for you.
In addition to temporary disability, as you go, workers’ compensation will also provide you a permanent disability award based on your limitations at the end of your case. Your limitations are usually quantified based on objective evidence, such as lifting, bending, stooping, five pounds, sometimes, never. Those types of limitations go into a formula, and then, based on that formula, you receive a specific dollar number. That dollar number does not include pain and suffering, unfortunately, in most cases. Finally, workers’ compensation provides a vocational rehabilitation voucher if you cannot return to your prior occupation.
Workers’ compensation is great for the immediate care and immediate payments of temporary disability. It’s not very good as it doesn’t pay for pain and suffering, and it doesn’t fully take into account the loss of value of life, loss of enjoyment of life going forward.
With that backdrop of the workers’ compensation system, if you’re injured on the job through somebody’s conduct other than your employer or an agent of your employer, then you may have a personal injury action as well, sometimes known as a negligence case. Unfortunately, however, if the negligence was that of your employer or an agent of your employer, you usually cannot by law bring a personal injury case. Your exclusive remedy is workers’ compensation.
If you have the right to a personal injury claim from an injury that arose on the job, the bad news about that claim is that the insurance company won’t pay for any of your care up front. The insurance company won’t give you any advances for your lost wages. They won’t give you a single dime, usually in your case, until you’ve reached a formal settlement or they’ve been forced to by a judge or jury.
Under the personal injury system, because they don’t have to pay any benefits as they go, many of our clients suffer financially until such time as they’re done with their case and ready to resolve it. However, when you resolve the personal injury case, you do receive compensation for loss of enjoyment of life and pain and suffering.
So when asked the question, which is better, personal injury on workers’ compensation? The answer is neither and both. In the early stages, after injury, workers’ compensation is definitely the best remedy because it will provide you immediate care for your injuries and will provide you temporary disability while you’re off work. However, as those items start to resolve, you’re usually better off getting off that horse, as I like to say, and getting on the personal injury. The personal injury horse is going to provide you compensation for pain and suffering and provide you with compensation for loss of enjoyment of life and compensation for your entire wages, not just two-thirds past and future.
When we transition from workers’ compensation benefits to personal injury benefits, it would be nice to believe that we could completely ignore workers’ compensation. Unfortunately, we can’t. Workers’ compensation has under the law what is known as subrogation rights. Under subrogation rights to the extent that they paid benefits on your behalf during this injury, they are entitled to receive some of that compensation back from the negligence case that you have against the third party. Some of that compensation back, though, is a very carefully used phrase. There’s a lot of litigation and a lot of law that discusses how much they get paid, how it’s calculated, and whether we have to account for reasonable attorney fees and costs.
If you have been injured on the job through a third party’s negligence, it’s important to speak with a firm that has knowledge in both workers’ compensation and personal injury. Both fields are unique, and knowing exactly when to go from one to the next and how to deal with the subrogation rights is a critical issue. The firm of Eason & Tambornini has multiple lawyers who practice workers’ compensation and practice personal injury. If you find yourself in that situation, where you have both of those claims, we highly recommend you contact one of the lawyers in our office for a free consultation. My name again is Matt Eason. I’m with the law firm of Eason & Tambornini.
