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There are many instances where workers compensation and personal injury claims intersect. It could be as simple as an auto accident caused by a third party during work hours, or it could be as complicated as a mechanical failure or some other product liability issue. In either case there are two claims generated by the same accident; a workers compensation claim and a personal injury claim. Many lawyers do not handle workers compensation, and so they encourage their client to hire two different lawyers. This is usually not the best scenario.
In a personal injury claim , the injured party claims against the negligent party for reimbursement of past and future medical expenses, pain and suffering and inconvenience, past and future lost wages, loss of earning capacity, compensation for permanent injury. In a workers’ compensation claim, the employer and its insurance carrier pay 100% of the injured employee’s lifetime medical expenses; 66 2/3% of the wages while the injured employee is taken out of work by their treating physician, and depending on the circumstances, compensation for the employee’s permanent injury. As is plainly evident, there are some areas where workers compensation and liability claims overlap.
Take for example a truck driver who is injured in an accident. His most immediate need is for medical treatment and for wage benefits so he can support his family. Assuming he qualifies as an employee, should he apply for workers compensation, he should receive his medical care paid for as well as a weekly benefit for the time he is out of work.
If that same truck driver makes a claim for injuries against the responsible driver, he should eventually receive lost wages, medical expenses, and all the other damages available in a personal injury claim. It is at this point that there is a collision between workers compensation and personal injury claims. Once the truck driver tries to settle his injury case, the workers compensation insurance carrier will complain that it is not fair that the injured worker receives payment of his medical expenses, and then recovers them a second time in the personal injury claim. The same is true for lost wage payments and payment of permanent partial disability.
This right of the workers compensation insurance carrier to claim for a reimbursement for what they paid in connection with a worker’s claim against a third party is called subrogation. Generally, workers compensation laws grant the employer and their insurance a lien on the recovery of the injured worker. At the point that there is a proposed settlement of the personal injury claim there is a need to try to negotiate the workers compensation lien, which usually requires some coordination between the two claims. Having one lawyer who handles both claims is in my opinion preferable to having two lawyers trying to work together to maximize the injured party’s recovery. One lawyer handling both claims is too simple a solution for what is otherwise a somewhat complicated problem.
Related posts:
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- LIST OF COMMON TERMS OR ACRONYMS USED IN WORKERS COMPENSATION CLAIMS
- 2008 Virginia Workers' Compensation Revised First Report of Injury Form
- The Most Common Mistake Injured Employees make in Virginia Workers Compensation cases
- New Forms from the Virginia Workers' Compensation Commission