One question that often comes up with clients that have a
work injury is what the difference is between a workers’ compensation claim and
a personal injury claim. Many clients,
particularly first-time clients, don’t understand the nuances of each system. As an attorney who handles both workers’
compensation and personal injury claims, I get many questions from clients as
to what damages are allowed under each system and rightfully so. What type of damages is an injured worker
entitled to when filing a workers’ compensation claim? When might an injured worker be able to
pursue a third-party personal injury case in addition to his or her workers’
compensation claim? Can the money you
receive in workers’ compensation benefits act as an offset.
Illinois Workers’ Compensation Act
As an injured worker, there are certain benefits that you
are entitled to when you are injured on the job, assuming your injury arose out
of and in the course of your employment.
First, you are entitled to payment of all medical expenses that you
incur as a result of your injury. If you
are off work, you are often entitled to payment of lost wages in the form of
what is referred to as total temporary disability (TTD) payments. These payments are two-thirds (2/3) of your
average weekly wages. When you reach
maximum medical improvement, meaning you no longer require medical treatment,
you are entitled to some type of permanency award, depending on the nature and
extent of your injuries.
There are three types of awards you may be eligible
for. Most commonly, an injured worker
receives a permanent partial disability (PPD) award. These awards are broken down into percentages
of a body part, leg, arm, foot, hand, body of whole, etc. The percentages are related to the number of
weeks you are considered permanently and partially disabled. The maximum amount of weeks is 500,
equivalent to 100% of the body as a whole.
That is the maximum PPD award you can receive. The amount you are entitled to varies
depending on which body part is injured and what the nature and extent of your
Another award an injured worker might be entitled to is a
wage-differential. This award is meant
to reimburse an injured worker for the loss in earning capacity as a result of
the worker’s injury. For example, assume
you were working as a laborer making $30 per hour before you work injury. As a result of the injury, you can no longer
work as a laborer. You find a job based
upon your transferable skills, education, and work history, but the job only
pays $15 per hour. Hence, you have
suffered a loss in earning capacity of $15 per hour. You might be entitled to an award of 60% of
$15 per hour multiplied by 40 hours per week.
Due to changes in the law, whether you receive this check for the rest
of your natural life or for a set time period would depend on what year you
Assuming you could no longer work in any capacity due to
your work injury, you might be entitled to a permanent total disability award
or perm-total award. Essentially, this
would be that you would receive whatever your TTD check was for the rest of
your life. This is the most significant
impairment an injured worker can have.
One of the benefits under the Workers’ Compensation Act is
that, unlike in a personal injury action, an injured worker need not show that
his or her employer was negligent in causing your injury. No such requirement exits because the
workers’ compensation system is a “no fault” system. If your injury arose out of an in the course
of your employment, you should be covered.
What of the trade-offs that comes with such a system is that certain
damages an individual would be entitled to in a personal injury claim, i.e.
pain and suffering, loss of normal life, etc. is not available to an injured
worker. In this respect, the legislature
seemingly sought to create a system that, while protecting injured workers
regardless of fault, also protected employers from shelling out a substantial
amount of money for injuries. To that
end, workers are generally forbidden from filing a third-party personal injury
case against their employers. The
Workers’ Compensation Act is the exclusive remedy. One added benefit: The damages you receive in your workers’
compensation claim are not taxable.
Unlike workers’ compensation claims, an injured person must
show that someone else’s negligence (or intentional act) caused his or her injury. Like workers’ compensation, you are entitled
to damages relating to medical bills and lost wages you suffer as a result of
your injury. Unlike workers’
compensation claims, you are entitled to recover 100% of your gross lost
wages. However, lost wage damages are taxable
whereas damages relating to your physical injury are not. In addition, however, you are entitled to
recover for damages for any pain and suffering, loss of normal life, and
disfigurement sustained as a result of your injury. Loss of normal life is generally defined as
the inability to conduct your activities or hobbies as you normally did before
your injury. In addition to what you
have already endured, if proven, you can recover damages for pain and suffering
and loss of normal life that you are reasonably expected to sustain in the
future. Disfigurement generally refers
to any scarring that you have suffered from your injuries. You can also recover for any emotional
damages you have as a result of your injuries.
Proof of these damages usually requires competent medical testimony to
be admissible at trial.
Interplay between Workers’ Compensation & Personal
In certain situations, you could have a claim that falls
under both systems. Suppose you were
operating a vehicle on behalf of your employer and someone hits your
vehicle. You could have a claim for workers’
compensation against your employer as well as a claim for personal injury
against the person that caused the accident.
Assume you were walking from an employee designated parking lot to go
into work and slipped and fell on ice in the parking lot. You could have a claim against your employer
as well as a third-party claim against the owner of the property (if not your
employer), the manager of the property, and/or the snow and ice removal
company. Perhaps you were working on a
machine in your employer’s factory and the machine was defective causing you
injury. Again, you could claim against
both your employer and a claim for personal injury against the manufacturer of
the machine. Those are but a few
examples of injuries which have both a workers’ compensation and personal
injury component to them.
Assuming you have an injury where both types of claims are
applicable, there are even more nuances that a legal practitioner must be aware
of. If you receive any workers’
compensation benefits from your employer (i.e. medical payments, TTD,
permanency award), your employer is entitled to receive 75% of what was paid to
you out of the third-party personal injury case. This is generally referred to as a subrogation
interest or “lien”. If the lien is more
than the personal injury settlement or judgment, your employer is entitled to
75% of the total settlement or judgment.
Often, these liens are negotiable, but require a great effort on the
part of the practitioner. Although these
liens do not generally apply to an underinsured motorist claim you have against
your own insurance company, most policies now contain a provision wherein the
insurer claims a credit or set-off for any amount paid to you in workers’
compensation benefits relating to your injury.