What Happens When a Workers Comp Case Also Involve Personal Injury?

Most of us think that the only recourse for work-related injuries is workers’ compensation. But what many don’t know is that personal injury benefits can also apply to work-related accidents.

Yes, you read it right. Aside from workers’ compensation, you may also claim personal injury when you got hurt at work. Of course, this depends on the circumstances of your injury. But before we delve further into that, let’s first take a look at the difference between workers comp and personal injury.

Workers Comp vs. Personal Injury

Workers comp and personal injury are benefits that one gets when they are injured and a third party is involved. But they differ in many ways such as:

Fault Requirement

This is one of the most significant differences between workers comp and personal injury benefits.

Personal injury requires that someone must be at fault. Meaning, the accident that caused your injury is due to someone’s negligence or intent. While workers’ compensation is a no-fault policy. No matter who is responsible for your injury, you will get your benefits as long as it’s work-related.

Damages for Pain and Suffering

Under personal injury, the aggrieved party can claim damages for pain and suffering. In addition, they can also claim special compensatory damages such as household expenses and the cost associated with canceled trips or altered plans.

But with workers’ compensation, you cannot claim such damages. You are only eligible for medical benefits and compensation for lost wages.

Right to Sue

If you accept a workers’ comp settlement, you are waiving your rights to sue your employer. Once you receive your workers’ comp benefits, that’s it. You can’t take them to court anymore.

But with personal injury, you can file a lawsuit against whoever is responsible for your injury. In fact, most personal injury cases involve a lawsuit especially if both parties can’t agree on a compensation amount.

A bandaged hand of an injured worker.

Claiming Personal Injury for Work Injuries

As mentioned, workers comp is not your only recourse for work-related injuries, you may claim personal injury too.

But there are only specific instances where you can claim personal injury for workplace accidents. This include:

1. When a third party is at fault.

In general, you can claim personal injury for work-related accidents if a third party is at fault other than your employer or co-workers. Remember, workers comp prevents you from suing your employer or co-workers. But you can always sue a third party if they played a role in the accident. Third-party, in this context, refers to people or organization that doesn’t work for your employer.

For example, an equipment rental company failed to do the necessary maintenance for their equipment. This negligence then caused a workplace accident that injured several workers. The injured workers can then sue the company for personal injury.

2. Your employer intentionally caused you harm.

Claiming workers’ compensation takes away your right to sue your employer. But if your employer intentionally caused you harm, then that’s a different story. In instances like this, you can sue your employer and claim personal injury benefits.

3. The negligence was caused by intoxication or taking in illegal substances.

If your injury is caused by the negligence of a certain person and intoxication or intake of illegal substances caused that person to become negligent, you can file a personal injury claim against them.

4. Lack of workers comp coverage.

Not all employers are required by law to provide workers comp insurance for their employees. While many employers who are required by law to provide workers comp insurance never do. Either which, if your employer doesn’t have workers comp coverage, you cannot get workers compensation. But you can sue them for personal injury to get compensation for what you’ve been through.

5. Your injury was caused by a defective product.

When a defective product caused your injury, you can sue the manufacturer for personal injury compensation and damages.

Can You Claim Both Workers Comp and Personal Injury At The Same Time?

Technically, you can claim both workers comp and personal injury benefits at the same time. The idea behind workers’ compensation is to ensure that injured workers will have the means to support themselves while recovering from their injury. But if your case also involves a personal injury element, it will be treated as a separate claim.

Workers’ comp laws may vary per state. But in most states, there is no provision that you can’t claim personal injury if you’ve already received workers’ compensation. However, you need to prove that your case does involve personal injury.


Victor Malca P.A. has over 25 years of litigation experience in Workers Compensation and Social Security Disability lawsuits. His experience and continued success in fighting for his clients puts among the most trusted workers’ compensation lawyers in Florida. Our area of expertise is in representing injured workers on compensation benefit cases and disabled individuals claim social security disability benefits.

Our unwavering advocacy for employee rights and privileges are recognized by our past clients across South Florida. Book a free consultation today.

Judy Ponio is a writer for Victor Malca LawAbout The Author

Judy Ponio is a writer for Victor Malca Law P.A. and enjoys helping people with questions about social security, workers compensation, and other serious matters involving people’s livelihood. She is not an attorney and her writing should not be considered legal advice.

Leave a comment