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Injured on the Job — Workers’ Compensation or Liability Claim?

Choosing the Correct Type of Claim (or Claims) Can Benefit Injury Victims

It’s a sad fact that thousands of people in the United States die every year due to on-the-job incidents, and millions more suffer injuries, some of them serious and life-altering. Although many employers take job safety much more seriously than in the past, and although regulatory agencies at the federal and state levels have put many more safety requirements in place, these incidents can and still do happen. When a workplace injury or fatality has occurred, a common question for the injured workers or their surviving family members is, “What type of compensation is available to help recover from this incident?” Depending upon the state and the facts of the injury incident, the most common answer is — workers’ compensation or liability insurance . . . or both. Determining which type of coverage may be available and which may provide the best bottom-line financial outcome for the client’s circumstances is a key service that experienced personal injury attorneys are able to provide.

Job-Related Injuries by the Numbers

On November 9, 2022, the U.S. Bureau of Labor Statistics (BLS) released data for workplace injuries and illnesses for the 2021 calendar year. This data showed:

  • 2.6 million non-fatal injuries and illnesses for 2021, down 1.8% from the prior year.
  • A rate of 2.7 “recordable cases” of injury and illness per 100 full-time worker positions.
  • The largest component of the decline in cases was due to a reduction in Covid-19 cases from the prior year (for circumstances where workers contracted the disease during the course of performing their job duties). This resulted in a 37.1% decrease in respiratory illness cases from 2020, though still far higher than pre-Covid rates.
  • A total of just over 1 million non-fatal cases resulted in a loss of at least one day of work.

Among the industries that showed changes in injury rates from the prior year, retail trade, transportation, and warehousing showed the largest increases, while health care showed the largest reduction (again, tied to reduced Covid numbers). Despite the reduction in overall numbers, health care and social assistance still had the highest rates of job-related respiratory illnesses at 99.2 cases for every 10,000 full-time positions.

The data just released by the BLS was for non-fatal cases in 2021, while a second report is expected in December 2022 for fatal working injuries in 2021. The prior year’s data showed 4,764 fatal workplace incidents.

Workers’ Compensation or Liability Claim?

Workers’ compensation insurance and the work comp system exist to provide benefits to injured workers and coverage to their employers in cases where the employee might otherwise file a liability lawsuit against the employer. Other than for a few specific exceptions, such as an employer who doesn’t have workers’ comp coverage, it is the only route available for injured workers or their survivors to seek compensation for an on-the-job injury, especially where the employer and/or co-workers may have been negligent. While we talk about these particular exceptions elsewhere, there are other situations where an on-the-job injury may occur due to the negligence of a third party who has nothing to do with the injured worker or their employer. In these cases, the injured worker may have both workers’ compensation coverage available, as well as bodily injury liability insurance available from the negligent party.

A common example of a situation where this may occur is in a motor vehicle accident in which the on-the-job worker — whether driving an employer-owned vehicle or their own vehicle while performing job duties — is struck and injured by another driver on the road. Because this injury occurred while the worker was on duty, they would have workers’ compensation coverage available for their injuries, while at the same time, the auto liability coverage of the negligent driver would also be available to them.

Which Coverage to Choose?

In these situations of potential dual coverage, it’s necessary to carefully review the facts that will determine which type(s) of coverage – workers’ compensation or liability insurance (or both) — may apply, as well as which may provide the injured worker with the best bottom-line results. Each type of coverage — workers’ compensation or bodily injury liability insurance — has pros and cons.

Workers’ compensation is automatic — if the injury occurred while the worker was on the job, then work comp is available. There’s no need to prove negligence in a work comp claim, merely that the employee was on duty. Work comp can sometimes provide greater benefits or benefits of longer duration, especially in situations of serious injuries that have left a worker permanently disabled. On the other hand, work comp may limit the worker’s choice of medical providers and treatment to a significant degree and resolving a workers’ compensation claim completely can sometimes be a very slow and challenging process.

Liability insurance coverage from a negligent party, such as auto insurance in a traffic accident situation, is not automatic — it is necessary to prove that the other driver was negligent in order for the insurer to pay out. On the other hand, third party liability claims will have fewer restrictions on medical providers and treatment — the injured victim is free to choose their regular doctors if they wish — and liability claims will often give greater compensatory value to many types of injuries than workers’ compensation claims will. And some types of liability claims, especially policy limits claims where the claim value is obviously far greater than the coverage limits, may resolve more quickly than work comp claims.

Very often in these situations, pursuing both types of claims simultaneously will be of benefit to the injured worker. This will always depend upon the specific facts of their situation, including:

  • The nature of their injuries, including permanence and severity.
  • The amount and cost of any long-term medical care that may be required.
  • The clarity of evidence proving negligence and liability for the third party defendant.
  • The amount of bodily injury liability coverage available.

In any situation where both types of claims are pursued, the workers compensation insurer will seek either a set-off or reimbursement for benefits paid from the proceeds of the bodily injury claim settlement or verdict — the amount which may be due to the work comp carrier may be a complicated calculation, and it is often subject to negotiation. Providing these negotiation services, as well as helping determine which types of coverage will best benefit the injured worker are crucial ways in which an experienced personal injury attorney can assist clients who have suffered workplace injuries.

View this news video about a woman whose workers’ compensation claim related to on-the-job Covid exposure was first denied, but where persistence paid off:

Workers’ Compensation Attorney in Sacramento

Hello, my name is Ed Smith, and I’m a Sacramento Workers’ Compensation Attorney. Millions of people are injured every year while working on the job, and unfortunately, thousands more are killed.  The routes for seeking compensation for injured workers or their surviving families can be complicated and frustrating to navigate.  Carefully evaluating which types of coverage may be available to an injured worker — workers’ compensation, liability insurance, or both — are key to achieving the best bottom-line results for the worker and important service that personal injury attorneys can provide to clients.  If you or a member of your family has been seriously injured while on the job, please contact us at (916) 921-6400 or (800) 404-5400 for free, friendly advice. You can also reach us through our online contact form.

We are proud to be members of the National Association of Distinguished Counsel and the Million Dollar Advocates Forum.

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