email: mick@micklaw.com
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What You Should Know:
Differences between a Personal Injury
and a Workers Compensation Case.
Under Pennsylvania law, you cannot "sue" your employer for a work related injury. You can, however, bring a workers compensation claim. While both causes are similar in that each seeks financial damages in connection with an accident, a workers compensation claim and personal injury case have important differences.
AMONG THE DIFFERENCES ARE:
1. WHAT YOU HAVE TO PROVE TO WIN THE CASE.
A workers compensation claim is an administrative remedy provided by law when a person is injured in the "course and scope of his employment". It does not matter whether you were at fault or your employer was at fault. If you were injured on the job, and disabled you are entitled to compensation. By contrast, in a "personal injury case" such as an automobile accident, slip and fall accident or medical malpractice case, you must be able to prove that the accident was caused by the negligence of someone else before you can recover money.
2. WHAT YOU CAN CLAIM FOR DAMAGES.
An individual injured in a work accident is entitled to receive two-thirds of his "average weekly wage", payment of any accident related medical bills, damages for certain kinds of scarring or disfigurement. Most importantly, you are not entitled to receive money damages for your pain and suffering. This is the workers' compensation "trade off". The Legislature has determined that you will be able to recover in a work related injury regardless of who is at fault. In return you give up the right to receive the large money damages usually associated with prolonged pain and suffering.
By contrast, in a personal injury case, there are no caps or limits on what a jury may award an injured person and the categories of damages are far broader than in workers compensation. In a personal injury case, you have a right to recover damages for past and future medical bills, past and future lost wages and earnings capacity.
3. COSTS OF THE CASE.
A workers compensation claim costs nothing to file. In my experience, the costs usually run somewhere between one hundred to two thousand dollars, depending upon whether or not it is necessary to employ the services of a medical doctor to prove the cause and extent of the injury. Personal injury cases are much more expensive. Generally speaking, you can expect to spend several thousand to tens of thousands of dollars to employ the services of physicians, engineers, vocational rehabilitation specialists, etc. In a personal injury case, the majority of these costs are advanced by your attorney and will be reimbursed out of the settlement or verdict.
4. ATTORNEY FEES.
Attorney fees are capped under the workers' compensation system at 20%. As a result, clients are usually expected to advance the costs. In Personal Injury cases, the attorney will usually charge 33% prior to trial and 40% if the case goes to trial. The majority of the costs are advanced by most attorneys in personal injury cases.
AUTOMOBILE ACCIDENT CASES.
Several years ago, as part of the Automobile Insurance "reform", the Legislature directed the insurance industry to offer two different kinds of automobile insurance in Pennsylvania. As a result, you can now purchase "Limited Tort Coverage" or "Full Tort Coverage". If you have selected Limited Tort Coverage, you will have given up your right to sue the person who caused your accident for pain and suffering unless you have been "seriously injured or disfigured". Needless to say, many cases which would otherwise have been settled are going to trial on the issue of what constitutes a serious injury.
There
have been many occasions where I have been consulted in situations where a
non-working spouse and/or children were injured in an accident. They
will not
be able to recover at all if they have not been seriously injured. The
moral of this story is simple. Buy full tort coverage for you and your
family and you won't be sorry later.
What you say and do immediately after a car accident can have a decisive effect on the outcome of your case. Statements to another driver, police officer, ambulance personnel or witnesses are admissions, which can be used against you at trial. Remember, all statement are "on the record". Be careful only to say what you actually mean to say after an accident. Here are a few tips:
- Promptly see a doctor or go to a hospital if you are injured. Follow all recommendations and prescriptions of your doctor.
- Exchange insurance information with all other drivers involved in the accident.
- Record names, addresses, and telephone numbers of any witnesses, including medical personal and police officers.
- Take video tape or photographs of all your injuries while you are still in the hospital and at home. Although these images may be highly personal in nature, these images are true and accurate depictions of your condition and will help jurors understand the nature and extent of your injuries. Remember that a trial may not occur for several years after your accident, at a time when the jury may only see you appearing to be normal and healthy.
- Take video or photographs of all the damage to the interior and the exterior of your car. Do not relinquish title to your vehicle or have it repaired until you have spoken with an attorney.
- Report the accident to the police and your own insurance company as soon as possible.
- Notify your employer if you are unable to work.
- Seek representation from an experienced personal injury attorney as soon as possible.
Things You Should NOT do after an Automobile Accident:
- Give a statement of any kind to the other driver's insurance representative outside of the presence of your attorney. Remember, many insurance companies insist that their claim adjusters make contact with you within twenty-four hours. You do NOT have to speak with them.
- Accept settlement with the other driver's insurance company without first consulting an attorney.
- Withhold information from your attorney as to how the accident happened, the injuries you received, or your pre-accident medical condition. All discussions with your attorney are privileged and cannot be disclosed.
- Exaggerate the real extent of your injury; stay off work when it is not medically necessary; receive more medical treatment than is necessary to completely recover.
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