Will I get compensation for pain and suffering in a workers’ compensation claim?

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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 16, 2021

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How is workers compensation calculated?

Workers’ compensation is primarily designed to help recover wages lost due to work-related injuries. It is meant to provide – in effect – no-fault (and relatively low-cost) insurance for employers and employees in businesses consisting of at least one employee. These goals are used to develop a state’s pre-injury Average Work Week (AWW) wages for awards, which usually amount to 2/3 of an AWW. Primary areas of dispute are what happens when the employment situation or workplace duties are not legally clear, and precisely what to include or exclude from the AWW.

Are there any differences in paying an award for ‘pain and suffering’ OR emotional harm?

  Pain and suffering is almost always excluded from workers’ comp claim awards. Though the categories of pain or emotional harm are similar, they actually require very different tests. Many states (e.g., California) do allow compensation awards for psychiatric, mental, or even purely emotional damages that were not caused by a specific physical injury. However, these emotional harm claims are very difficult to prove: courts usually only award for psychiatric/mental harm if the employer acted outrageously or illegally.

Are there times it’s better to use workers’ compensation rather than a court?

Yes. Workers’ comp is ‘no fault,’ a form of insurance. If you go to court, you can usually expect it to be more time consuming, expensive, and intrusive to your life. Workers’ comp can also provide more certainty in terms of the time it takes to reach a decision and the specific amount you are likely to receive.  However, workers’ comp decisions are usually final, while in a court case you can usually appeal an unfavorable decision, or settle before a decision is reached. Workers’ compensation appeals, when they occur, are limited affairs.

Do all states hold workers’ compensation as the only way to recover for an employer injury?

No. There are considerable differences among the states. At least five states require employers to purchase workers’ comp insurance exclusively through a state fund. Nevada, however, has gone to a single private insurer. Thirteen states (as of the time of writing) have a state fund that competes with private companies (Arizona, California, Colorado, Idaho, Maryland, Michigan, Minnesota, Montana, New York, Oklahoma, Oregon, Pennsylvania and Utah). Texas and New Jersey do not technically require employers to buy workers insurance at all. For the most up-to-date information on your specific state’s guidelines regarding workers’ compensation recovery, consult an employment or labor law attorney in your area.

What if I own the company?

Some states also do not require certain types of employers to have insurance. Sole proprietors with no employees, for instance, generally do not have to carry workers’ compensation insurance. But some states require insurance even for subcontractors and independent contractors. Again, check with a local employment attorney for details and help with your particular situation.

My employer was required to carry workers compensation, but didn’t…now what?

In these situations, some states allow an injured employee several choices for how to proceed to recover damages. Most involve either filing a worker’s compensation claim (despite the employer’s failure to carry it), or filing a civil lawsuit. If filing a lawsuit, the employee is usually able to claim a wider range of harms than in a workers’ comp case, including pain and suffering.

Can I refuse to accept workers’ compensation?

In some states, yes. If an employee is not covered (for one of a limited number of reasons) by state workers’ compensation laws, they probably have the right to sue in a civil court (including for pain and suffering). Some states (e.g., Arizona) specifically allow employees to waive their right to workers’ compensation. But this employee waiver usually has to occur before an injury. Check with an experienced employment attorney for details if you are unsure of the situation in your state.

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