Worker's Comp Versus Personal Injury Claims: Can I do Both?

So you were injured in a workplace accident. The deadline to file a workers’ compensation claim with the North Carolina Industrial Commission (NCIC) is looming, but you don’t know whether submitting a claim will bar you from suing your employer later on in court. You are pretty sure your employer’s negligence contributed to your injuries and want to sue, but you also have medical bills from the accident piling up and need to pay them.

This is the unfortunate situation in which many people injured on the job find themselves every year. Workers’ comp provides much-needed financial benefits almost immediately following a workplace injury; however, the injured worker must submit their claim within a certain time after the accident in order to qualify for benefits. What’s more, unlike damages awarded through the courts for personal injury, the benefits an injured worker can receive through workers’ comp are subject to certain caps, both in monetary amount and duration.

The catch about the system of workers’ comp is that in exchange for paying for workers’ comp insurance coverage for employees, employers receive a certain level of immunity from civil suit by those employees. The workers’ comp laws of North Carolina specifically prohibit “double recovery,” meaning that in most circumstances you can’t recover both.

Fortunately, there are many potential routes an injured employee can take in this situation together with their personal injury attorney. With either a workers’ comp or personal injury claim, it is important to speak with an attorney experienced in both areas of the law—the advantages and disadvantages of each, applicable deadlines, etc. When you are unsure which avenue to pursue, it becomes even more critical to consult with an attorney who works in both personal injury and workers’ compensation law that can guide you along the path that leads to the best resolution for your particular situation.

Choosing Between Workers’ Comp and Personal Injury Suit

Depending on the nature of your injuries and your employer’s conduct, your attorney may immediately recommend based on the unique facts of your case that you pursue one type of reimbursement over the other. There is a great deal of overlap in the events that can lead to claims for workers’ comp and personal injury, but in many situations one type of claim is more appropriate than the other.

For example, the system of workers’ comp is not as equipped to compensate for pain and suffering, inconvenience or emotional distress as the courts are. The benefits an injured worker can receive through workers’ comp are subject to certain caps, both in monetary amount and duration, whereas a personal injury claim, whether it is for negligence, recklessness, wrongful death, etc., is not subject to these caps.

Sometimes, however, injury lawsuits are barred from proceeding if the worker already filed a claim for workers’ comp. North Carolina courts have held that in order to proceed with both a pending workers’ comp claim and personal injury employer lawsuit, the employer’s alleged conduct must have been so severe that it basically amounts to an intentional tort (the word “tort” is a broad term in personal injury law that describes a harmful act one party does against another). Within the context of being able to file both a workers’ comp and personal injury claim, the employer does not have to have intended for your injury to occur, but still must have been substantially certain their action or inaction would result in death or serious injury. This is an extremely high bar that is difficult to meet, so unless your employer’s actions rose to this level, your attorney will help you decide which avenue to pursue.

Proceeding With Workers’ Comp Claim and Personal Injury Suit

However, it can be difficult to gage expected damages on the front end of a case. There are also ways in which a person can file both a claim for workers’ comp and an employer lawsuit for personal injury, weigh their potential recovery from each, and then later opt for the choice that will maximize the amount of compensation they will receive. In your situation it may be recommended that you submit your workers’ comp claim to the NCIC to meet their deadline but ask them to the claim on “hold” so you do not receive any benefits yet. That way you would be able to additionally pursue a claim against your employer in a personal injury lawsuit.

Depending on the case, courts will also sometimes permit the injured party or their family to proceed with a personal injury claim even after collecting workers’ compensation for the same injury. However, the workers’ compensation carrier will then usually have a lien on any financial award the injured worker receives from the personal injury suit, in the amount of workers’ comp benefits that the person already received. This means the injured party will have to reimburse the workers’ comp carrier for that amount.

Whether you have been injured on the job and need to file a workers’ compensation claim, or have been injured by another person’s negligence, or both, it is important to speak with an experienced attorney familiar with both workers’ comp and personal injury law in North Carolina. Arnold & Smith, PLLC is an aggressive civil and criminal litigation firm in Charlotte, North Carolina. Contact us today for an initial consultation about your case with one of our personal injury/workers’ comp attorneys.

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