​How does a work injury claim differ from a basic personal injury claim?

25 Aug 2020
Many people associate a work injury with a personal injury claim, but in fact when you are injured at work or if a family member is killed at work, there are many different laws that apply to a work injury that would not apply to a basic personal injury case.

How does a work injury claim differ from a basic personal injury claim?

Many people associate a work injury with a personal injury claim, but in fact when you are injured at work or if a family member is killed at work, there are many different laws that apply to a work injury that would not apply to a basic personal injury case.

When you are injured at work you may be covered by your companies workers’ compensation insurance policy. Most states require employers to have workers’ compensation insurance (Texas being the exception). Workers’ compensation insurance provides a no-fault system of insurance similar to health benefits policies but in addition to paying medical expenses, they also cover some percentage of lost wages as well. Therefore they work as both a health insurance policy and a disability policy. The trade-off of workers’ compensation is that even if your employer was negligent in causing your injury you are generally prohibited from suing your employer based on negligence. This is generally known as the “workers’ compensation bar” or the “exclusive remedy” provision. The plus side of the workers’ compensation insurance is that it provides basic coverage regardless of who is at fault for your injury or death.

When you are injured at work you may be covered by the Family Medical Leave Act “FMLA”) or in some cases, a State leave provisions. Under the FMLA (if you are eligible) you can obtain up to 12 weeks of leave (this may be paid or unpaid depending on State law and your companies policies).

If you are terminated by your employer after a work injury, most states provide anti-retaliation provisions that prohibit your employer from terminating or otherwise discriminating against you for filing a workers’ compensation claim.

If your work injury leaves you with any type of disability or if your employer perceives you as disabled you may have a claim pursuant to the Americans with Disability Act (ADA) or a state equivalent provision. The ADA states that your employer cannot terminate your employment if you can still do the essential functions of your job with or without reasonable accommodation. For example, if you are released to return to work on “light duty” if you can still do the essential functions of your job your employer may have a duty to take you back with those restrictions. In general, it is illegal for your employer to require a “full release” with “no restrictions”. The ADA also covers you if your employer begins to discriminate against you because they believe you are injury-prone or will file another workers’ compensation claim based on your prior injury. This is known as “perceived disability” and often happens after a work injury where a worker is claiming a back or knee injury but is returned to work without restrictions.

Also, OSHA (Occupational Safety Health Act) has thousands of provisions that apply to employers and deal with job safety. If you are injured or killed at work, your employer is usually required to report these serious injuries and deaths to OSHA, and investigations by OSHA may be carried out. If you provide information to OSHA about your injury, then you are protected from termination based on OSHA anti-retaliation provisions.

In many work injuries and death claims there may actually be a third-party (non-employer) that is responsible for the injury or death. If so, you or your family member will generally be able to sue the third party, however, the issues will be complicated by the possible negligence of your employer as well as the workers’ compensation insurance carriers’ right to be reimbursed for amounts they paid. Third-party claims (including product liability) in work injury and death claims are complicated by many issues and require the expertise of a work injury lawyer who has experience in all the aspects of employment law as well as workers’ compensation, OSHA, and product liability law.

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