Our Offices Are Remaining Open to Ensure You Get Legal Representation. Call Us Today to Schedule Your Free Consultation.

Should I File a Worker’s Compensation Or Personal Injury Claim?


Have you suffered an injury at work? You may already know that you can claim worker’s compensation. However, it may also be possible to file a personal injury claim in some cases. Should you file a worker’s comp claim or a personal injury claim? Can you file both? Our Miami personal injury attorneys explain.
Whether you should file a worker’s comp or personal injury claim depends on the party liable for your injuries. If no one else is at fault, worker’s compensation may be the only option. If a third party is legally responsible for the accident, it may benefit you to file a personal injury claim. In some situations, you can file both types of claims. However, even if you can file both, determining whether you should file a worker’s comp or personal injury claim can be a complex question.

Worker’s Compensation vs. Personal Injury – At a Glance:

PERSONAL INJURY WORKER’S COMPENSATION
Proof of fault required Yes No
Claim against the employer No Yes
Claim against third parties Yes No
Pain and suffering compensation Yes No

How Are They Different?

In order to determine which option is best for you, it’s important to understand how they’re different. Worker’s compensation and personal injury claims differ in some significant ways:

Proving Legal Fault

When you file for worker’s compensation, you don’t have to determine who is at fault for the accident. All you have to do is demonstrate that you got hurt while working, and that’s it. If you have a qualifying injury, you don’t have to prove that your employer is at fault. You also don’t have to prove that you’re not at fault.
However, proving legal liability is required in all traditional personal injury cases. To win any compensation, you have to prove that the responsible person or party caused the accident. The legal standard is at least negligence, and it may also be recklessness or intentional misconduct. In terms of proving the case, winning a personal injury claim has additional burdens and steps that are not present in a worker’s compensation case.

Pain and Suffering

However, before you conclude that it’s just easier and faster to file a worker’s compensation claim, remember that there are some reasons that a personal injury claim may be more beneficial. In a third-party injury claim, you can demand compensation for pain and suffering.
The value of the pain and suffering portion of any claim may be much higher than the amount in economic damages. Because pain and suffering damages are allowed in a third-party claim, the compensation that you can win in a personal injury claim may be much greater than a worker’s compensation claim.

Can I File Both a Worker’s compensation Claim and a Personal Injury Claim?

Yes, you can file both a worker’s compensation claim and a personal injury claim. The two types of cases are not mutually exclusive. If a third party is legally responsible for the accident, and the accident occurs while working on behalf of your employer, both types of actions are available to you. 

Examples of Having Both a Worker’s Compensation Claim and Personal Injury Claim

There are a variety of circumstances in which you may qualify for both a worker’s compensation claim and a personal injury claim. Here are some examples:

  • You’re driving for work and a car accident occurs. You sustain injuries. The car accident is the fault of the other driver. The other driver is also driving for work purposes. In this case, you may have a worker’s compensation claim through your employer. You may also have a valid claim against the other driver and their employer
  • The company that you work for provides personal protective equipment (PPE). They give you a pair of work gloves. Unfortunately, the gloves are made of poor materials. A glove rips while you are working, and you severely injure your hand. You may have a valid worker’s compensation claim, but you may also have a valid personal injury claim against the glove’s manufacturer for product liability.
  • One of your job duties is to move boxes through the building and into storage. There are broken stairs on the way to the basement storage unit. It’s the building owner’s job to maintain the stairs. However, they’ve fallen into disrepair. As you carry boxes on the stairs, you slip and fall. While worker’s compensation may be appropriate for your employer, a third-party claim may be most appropriate because of the liability of the building owner.

Worker’s Compensation and Personal Injury Settlements

It’s important to understand that a worker’s compensation claim and a personal injury claim are both a possibility following a work injury. Sometimes, the worker’s compensation claim is a better option. If you want a guarantee that your medical bills are going to be covered now and in the future, worker’s compensation may make more sense. It may also be better in cases where third-party liability may be difficult to prove or where the third party cannot pay a substantial claim.
However, there are also situations in which a third-party case is the better option. Damages for pain and suffering is available in third-party claims, and not available in worker’s compensation cases. The difference may be substantial.

Understanding The Interaction Between Worker’s Compensation and Personal Injury Claims

Which type of claim is more beneficial, or whether you can file both types of claims, can be a tricky question. While it might seem like the easy answer is just to file both types of claims, that may not be the best option. When you bring a personal injury claim, it may impact what you can receive in worker’s compensation.
In addition, you may need to reimburse the worker’s compensation insurer for compensation that you receive from the personal injury claim. The purpose of the reimbursement rule is to prevent you from recovering twice for medical bills. However, the result may be that compensation meant for your pain and suffering is handed over to the worker’s compensation insurer, leaving you with less than you deserve. For this reason, it’s always best to consult with an experienced attorney that deals with both personal injury and worker’s compensation claims.

Miami Attorneys for Worker’s Compensation vs. Personal Injury Claims

Don’t settle for less than you deserve. Our Miami attorneys for worker’s compensation claims can help you determine the right path for you after a work injury. Our team of personal injury lawyers can help you maximize your compensation and choose the best legal strategy. Call us today at (800) 429-4529 for a free consultation.

About the Author

Jack G. Bernstein, ESQ.

Jack Bernstein is a hard working and highly motivated personal injury attorney in Miami, Florida with over three decades of experience. He is a strategist and idea person, with a genuine passion for helping his firm’s clients. If you've been injured, contact Jack Bernstein today for a free evaluation of your case.

The information contained herein is intended for informational purposes only and should not be construed as legal advice. Seek competent legal counsel for advice on any legal matter.