Top Five Things to Know About Workers Compensation versus Personal Injury

1. For a personal injury claim, fault is required on the part of a defendant.

2. For a Worker’s Compensation claim, there is no need to prove fault.

3. In a personal injury lawsuit you are entitled to damages for pain and suffering.

4. In a Worker’s Compensation claim you are not entitled to benefits for pain

    And suffering.

5. You cannot sue your employer for damages when you are injured on the job.

     You must pursue a Worker’s Compensation claim.

http://dir.nv.gov/WCS/Home/

We often get questions regarding the difference between personal injury claims and Worker’s Compensation claims. They are similar and there is overlap between the two claims. Both types of claims obviously involve a personal injury. The most significant difference between a personal injury claim and a claim that involves injury on the job, also known as a Worker’s Compensation claim,  is that a personal injury claim is based on fault and a Worker’s Compensation claim is based on being injured on the job.

https://www.nevadaemployers.org/understanding-workers-compensation-in-nevada/

Personal Injury Claims Require Fault

A claim for personal injury is a claim in negligence which requires fault.  To recover damages in a car accident, a slip and fall, a dog bite, a medical malpractice claim or any type of claim that  involves personal injury, you  must show that there was a fault on the part of the adverse party. This means that we must prove, on behalf of our client, that someone did something wrong to cause injury to our client. We must also prove that our client was not over 50% at fault to recover damages. Conversely,  in a Worker’s Compensation claim you must simply prove that your injury happened on the job. This is a significant point in the law. To understand personal injury law you must understand that personal injury law is based upon the negligence of the acting tortfeasor which causes injury to a plaintiff or claimant. Accidents where simply no one is at fault do not qualify for a personal injury claim.  A Worker’s Compensation law is completely different from personal injury tort law.

Worker’s Compensation Claims are No Fault Claims

Worker’s Compensation cases involve employees that are injured while working for their employer and are entitled to Worker’s Compensation benefits. Worker’s Compensation claims have nothing to do with who is at fault for causing an injury. In addition, Worker’s Compensation claims are based on an administrative process and are not generally handled in the district courts. They are completely separate and have their own body of regulations. For a Worker’s Compensation claim, an employee does not need to prove that the employer or any coworkers did anything wrong to cause their injury. In fact, even if it is the employee’s own fault that they were injured while they were working, they are still entitled to receive Worker’s Compensation benefits for their medical bills and part of their lost wages.

Pain and Suffering Damages

The most significant and striking difference in Worker’s Compensation claims and personal injury claims are the damages that you are entitled to receive. In a Worker’s Compensation claim when you are injured on the job you are not entitled to damages for pain and suffering. These damages usually constitute a large part of a personal injury claim. In a personal injury claim, you are entitled under Nevada law to receive damages for the pain and suffering associated with your injury. For a personal injury claim you’re entitled to all of the damages that you have suffered including lost wages, medical bills, future medical expenses, any permanent injury, pain and suffering, loss of the enjoyment of life, lost earning capacity and any other damages that you incurred as a result of your injury

However in a Worker’s Compensation claim for injury received on the job, you can only receive partial weekly compensation for lost wages, permanent impairment benefits, medical bills, and damages for vocational rehabilitation which is training for a new occupation if that is necessary.  You cannot receive benefits for pain and suffering in a Worker’s Compensation claim. The theory behind this is that Worker’s Compensation is basically a negotiated benefit between the employer and the labor. Prior to instituting Worker’s Compensation laws in the early part of the last century, the only remedy a worker could obtain against their employer was to sue them for negligence. If the employer was not negligent employees could not bring a claim against them to recover their damages. Often times it was very difficult for employees to fight a large employer. Employers had way more resources and the ability to fight the employee through the legal system even if it was the employers fault.

The Worker’s Compensation system was devised to protect workers and compensate them for injuries they may have sustained while they were on the job. Because it is not a fault based system, the damages that they can recover are significantly less than damages they can recover for a personal injury claim when someone is at fault and negligent for causing their injury

You Cannot Sue Your Employer or Coworkers for Injuries on the Job

The trade off for making employers legally liable for any injuries sustained by employees while on the job was that employers could no longer be sued for injuries that employees sustained. Although the trade off may overall benefit most employees, it does come at a price.  It does allow employers to be negligent in causing injuries and not have to pay the same damages as if they were not an employer. However, if the employers conduct rises to the level of an intentional act as defined in the law and causes an injury to employee, the employee can file suit against the employer for said act. Courts, not wanting to disrupt the Worker’s Compensation scheme, have been very reluctant to find employer’s committed an intentional act to cause an employee’s injury and it is a difficult hurdle to overcome.

https://www.leg.state.nv.us/Division/Research/Publications/Bkground/BP97-06.pdf

The Jones Act

An unusual exception to Worker’s Comp., which does not affect Nevadans really, is that crew members of any type of boats from a cruise ships to a two person commercial fishing boat are not entitled to Worker’s Compensation benefits. Under a little known act called the Jones Act, these specific employees are permitted to sue their employers for damages including pain and suffering. So if you are ever on Jeopardy and your are asked this question or you find yourself relocating and becoming a member of a crew of a vessel and get hurt,  you should contact an attorney immediately regarding your injuries  There is also another federal act called the Federal Employers Liability Act which allows interstate railroad workers to sue their employers for damages they receive on the job. Only the interstate railroad workers or workers who work for a rail  road that operates in more than one state qualify. Therefore, railroad workers that work for a railway that only operates in one state do not fall under this federal act.

What Happens When Personal Injury and Worker’s Comp

 Overlap

Personal injury and Worker’s Compensation law often overlap when you are driving in the course and scope of your employment and you are in a car accident. In those cases Worker’s Compensation law is activated as well as personal injury law. However the laws in Nevada are very adverse to injured workers and much more favorable to employers when it becomes to pay back of benefits for injured employees. If you are in an accident where someone else besides your employer is at fault but you were in the course and scope of your employment such as a car accident, then you have to pay back your employer for any benefits including, medical bills and lost wages, that the employer paid on your behalf from any amount of money you collect from the at fault party. This usually results in somewhat of a wash of one of the personal injury claim.

Clients are often under the misconception that if they have Worker’s Compensation coverage and personal injury coverage they will receive a double recovery. That is not the law in the state of  Nevada. If you are injured on the job through the fault of a third-party you are entitled to Worker’s Compensation benefits and you have the right to sue the at fault party. However, Worker’s Compensation is entitled to be paid back the benefits they paid including your medical bills and lost wages and any payment for a disability rating that you received from any money that is paid from the at fault party. If there is excess payment from the adverse party over what Worker’s Compensation has paid you would be entitled to that excess. However, Worker’s Compensation always has a lien on your recovery for any benefits they paid. See  NRS616C.215.

If you were a loved one has been injured in any type of accident please call the offices of The One Lawyer today. We are a boutique law firm providing experienced and personal representation to injured clients.  At the Law Offices of Laura Payne-Hunt, TheOneLawyer.com we provide professional and personal service to each and every one of our clients on various legal matters and have over 15 years of experience in reviewing insurance policies and in Nevada insurance law.   If you have a question regarding any type of personal injury or paying your medical bills from an accident, please don’t hesitate to call the offices of TheOneLawyer.com and speak directly to attorney Laura Marie Payne-Hunt, Esq. a Henderson Injury Attorney for over 15 years.  Laura is recognized as one of Nevada’s Top 100 Lawyers.  She has the experience and knowledge to obtain the maximum settlement you deserve.  Please call our office if you or a loved one is injured.  We can make sure that you receive the care you need and deserve and advise on how to preserve evidence.

At our office, we are experienced in helping injured victims get the compensation they are entitled to.  Insurance companies never have the best interest of the injured person at the top of their priorities.  They want to pay as little on every claim as possible.  Having worked for an insurance company as an attorney for 9 years before opening my boutique law firm specializing in helping injured people, I have reviewed thousands of auto accident claims and policy provisions.

At the Henderson and Las Vegas Accident injury law offices of TheOneLaweyer.com, Laura Marie Payne-Hunt and her staff are here to help you and your family in the event that accidents and tragedies occur.  For any of your legal needs, do not hesitate to contact our Henderson and Las Vegas Accident injury offices.  TheOneLawyer.com is a boutique, family owned law firm that specializes in helping injured people and the community of Las Vegas and Henderson Nevada with legal issues involving auto accidents, wrongful deaths, slip and falls, truck accidents, injuries to children, bicycle accidents, dog bites, product liability claims, and all types of injury claims.  Please do not hesitate to call us anytime you have a legal question or you or a loved one has sustained an injury at 702-450-(HUNT) 4868 and text 24/7 at 702-600-0032.