NEGLIGENCE VS. NO FAULT
The crux of every personal injury claim is that somebody was negligent, and that negligence caused the plaintiff to be injured.
The negligence involved might be a poorly lit parking lot with lots of potholes that has created a tripping hazard. It might be following too closely in traffic and rear-ending somebody. Or it might be something else entirely.
Negligence is a critically important element in a personal injury case. It is usually one of the very first issues a personal injury lawyer needs to determine when evaluating a case.
Workers’ compensation law is a “no fault” statute. Instead of looking at negligence, the law looks at whether an employee was injured in the course and scope of their employment.
For example, if an employee takes out the trash at night and gets hurt because they tripped in a pothole due to a poorly lit parking lot, that is covered by workers’ compensation. Similarly, if a delivery driver is injured because they rear-end somebody, the driver is also entitled to workers’ compensation.
WORKERS’ COMPENSATION IS AN “EXCLUSIVE REMEDY.”
Employees who are injured on the job usually cannot sue an employer for negligence, even if that negligence led to the injury. In other words, if you get hurt at work, your only remedy is through workers’ compensation. There are some rare exceptions to this rule. If you have questions, speak with an experienced workers’ compensation lawyer.
GETTING MEDICAL TREATMENT
People who have been hurt in an accident:
- Have more control over choosing their medical providers. This might mean choosing an emergency room over a primary care physician covered by the plaintiff’s health insurance or deciding on a chiropractor. Regardless, personal injury plaintiffs tend to have more choices about their medical care.
- Pay for treatment or make arrangements for it to be paid. Very few people can afford to just pay cash out of pocket for medical care. Personal injury attorneys often advise their clients to use health insurance if they have it. If they lack health insurance, some medical providers may be willing to treat the injuries and file a lien to get paid out of any potential settlement.
- Have very little control over their medical treatment. Employers, usually acting through the workers’ compensation insurance policy, have total or near total control over the type of treatment an injured worker receives.
- Do not pay for treatment. Although the employer dictates medical care, the employer must also pay for all of it, including prescriptions.
PAIN AND SUFFERING
Pain and suffering refers to both physical pain, and mental or emotional pain.
Plaintiffs can seek pain and suffering damages.
Pain and suffering is not recognized under workers’ compensation law.
Lost wages are often part of a personal injury claim. However, they are typically paid out at the end of the case as a part of the overall settlement. They are not paid on an ongoing basis while the injured party is unable to work.
If an injured worker is unable to return to work right away, the first three consecutive days are not reimbursed. After that, workers’ compensation will pay for roughly 60% of lost wages. This is called “Temporary Total Disability” or TTD. An employee is only eligible for TTD if the workers’ comp medical provider agrees that the employee cannot return to work at all, or if an employer is unable to accommodate the employee’s work restrictions.
Have a specific question or want to learn more about the difference between workers’ compensation and a personal injury claim, call one of our personal injury attorneys in St. Louis and other locations across the Midwest for a free, confidential consultation at 1-888-803-1307, or submit your request using our online form.