Can I recover workers’ comp for a car accident-related injury while working?

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Jeffrey Johnson is a legal writer with a focus on personal injury. He has worked on personal injury and sovereign immunity litigation in addition to experience in family, estate, and criminal law. He earned a J.D. from the University of Baltimore and has worked in legal offices and non-profits in Maryland, Texas, and North Carolina. He has also earned an MFA in screenwriting from Chapman Univer...

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UPDATED: Jul 15, 2021

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It is against the law to fire you because you have filed or attempted to file a workers’ compensation claim.  In some states, if it can be proven that an employer fires or forces any injured worker to resign in retaliation for filing a workers’ compensation claim, the worker could file a civil lawsuit against the employer for retaliatory discharge. This type of lawsuit could result in substantial damages against the employer, and employers usually know this. In other states, a civil lawsuit for retaliatory discharge is not available. In California, for example, an employee is confined to a claim within the workers’ comp system, with a maximum award of $10,000.

If someone other than your employer or co-worker (the driver of the car that hit you, for example) is responsible for the accident, you can bring a third party lawsuit for additional money damages. Workers’ comp and civil personal injury claims are not mutually exclusive, and since workers’ compensation does not compensate the injured worker for pain and suffering, you will likely get a more complete recovery by suing the at-fault driver. You will have two claims to make – your workers’ comp claim for medical expenses and lost wages, and a personal injury claim against the driver who caused the accident and your permanent injuries, if any, or other losses.

As with any non-work auto accident claim, most personal injury attorneys will take your auto accident case on a contingency basis, meaning that the attorney will recover an agreed-upon percentage of your verdict or settlement as payment, plus costs, instead of taking any money from you upfront. Sometimes the same attorney can handle both your workers’ compensation claim and your third party claim. However, others will only handle one type of case.

There will generally be a lien imposed by the workers’ compensation insurance company against any recovery you receive from the at-fault driver; this is also known as a “subrogation” claim. The lien provides for reimbursement to the workers’ compensation insurance company of a percentage of the benefits that you recovered in your civil claim. Therefore, as an injured employee, you would not receive double benefits, and the workers’ compensation insurance company can be reimbursed for past of what it had paid.

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