Workers Compensation or Personal Injury?

       When someone is hurt on the job it's important that person understand the issues involved with being compensated for damages.  In most cases, the worker is covered by Workers Compensation insurance provide through his employer. In the event the employer did not have Worker's Compensation Insurance when required due to having 4 or more employees, the state has a fund to help such injured employees.  Workers Compensation is meant to help both the employee and employer.  It helps the employee by providing medical coverage and wage compensation without having to prove liability of the employer.  It helps the employer by preventing litigation costs as Worker's Compensation is the sole remedy for the employee against the employer.
      Despite the positive ends of Workers Compensation to the employee, it also brings certain drawbacks. Despite the liability of the employer in causing the injury through negligence, the employee cannot receive more than the medical costs and certain lost wage compensation.  It does not provide for damages like pain and suffering, and therefore can drastically limit what the employee would have obtained through a personal injury claim which could be filed in court.  The employee must accept Workers Compensation as the remedy against the employer, even if the employee would rather file a personal injury claim to obtain redress for damages like pain and suffering.
      It's important to know that Workers Compensation law in South Carolina does not restrict an injured employee from filing a personal injury claim against a third party (non-employer) with liability or some liability for the injury.  The employee must first finish the Workers Compensation coverage and settle the Workers Compensation claim before pursuing any further claims (and the Workers Compensation Insurance may hold a lien on any settlement or award from the liable third party).  However, when the Workers Compensation claim is settled, the employee can then file a claim against the third party.  That claim can involve all damages, including potentially punitive based on the nature of the case (more on punitive damages in another article).
      It's important to have an attorney handle work-related accidents.  Not only because Workers Compensation law is relatively complicated and involves many rules in dealing with the Workers Compensation Commission. The other reason is that an attorney will be able to properly assess the potential for the third party claim and what damages to seek. 

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        For many, being hurt on the job is something unexpected.  With all the various safety requirements, it seems as though it just couldn't happen.  Most expect the possibility of being hurt in a vehicle accident of something similar, and know the basics of what to do in the event of that type of injury.  However, being hurt on the job is something unique, and the normal legal remedies available are unique and must be understood before the injury (Note:  though states have similar laws for workers compensation, I write this article as an attorney licensed in South Carolina, and by SC law).

        First, in most work situations the employer will have workers compensation insurance. In fact if the employer has four or more employees he is legally required to have workers compensation benefits for employee.  Under workers compensation law, an injured worker (for an injury sustained on the job) with workers compensation benefits is required to seek workers compensation benefits against his employer regardless of the fault of the employer in causing the injury.  

        Workers compensation is a "no fault" insurance program.  This means it does not matter whether or not the employer is liable for the injury, he is required to take care of the medical needs of the worker associated with the injury.  Workers compensation benefits include medical compensation benefits and temporary partial disability payments while the worker is unable to work.  When the respective worker is brought to "maximum medical improvement", workers compensation provides a lump sum amount to compensate for future medical issues and problem.  In the event the employer did not have workers compensation, in violation of state law, the worker will still receive benefits through a state fund, and the state will go after the employer for recoupment.

        In some cases, the worker may have further recourse beyond workers compensation for injuries sustained on the job.  If another party or corporation, beyond the employer providing workers compensation is responsible for the injury, the worker can sue the other party after resolving the workers compensation.  For example if an employee is injured partly due to equipment malfunction of another corporation providing equipment for the employer causes injury the employee can sue the equipment provider after workers compensation benefits.

         Another legally related issue with being injured on the job can be discrimination and/or termination due to the injury.  Being injured usually puts the employee under the protections of the Americans with Disabilities Act protections.  This generally requires reasonable accommodations for those with disabilities, which include disabilities due to injury.  It also prohibits discrimination due to disability, including disability due to injury.  If an employer were to fire an employee due to the injury, the employer could be found to have violated the ADA.  In that event, the employer could face substantial monetary penalties to the employee.  Employers should be very careful about taking any kind of action against employees who are injured and must allow for reasonable treatment and rights under the Family Medical Leave Act.
       Finding an attorney to assist after a job related injury is beyond wise.  The attorney can help navigate not only the nuances of workers compensation, but understand the fine points of bringing a separate lawsuit against other parties. In the event of workplace discrimination due to an injury, the attorney will know the lines the employer has crossed in violation of Federal and/or State law.  

      Though an on the job injury can be tough, having a plan to handle it makes all the difference in the world.

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