After a workplace accident, you may assume a workers’ compensation claim is your only recourse for obtaining compensation for your injuries. While West Virginia’s workers’ comp system is an excellent course of action after many workplace accidents, some circumstances deserve the attention of a judge or jury. Learn the difference between workers’ comp and personal injury claims and when you should file for each by speaking with a West Virginia injury lawyer.

The Question of Fault

The main difference between workers’ comp and personal injury claims is the question of fault. An injured worker does not have to prove fault in a workers’ comp case, but he or she does in a personal injury case. The workers’ compensation system relieves the burden of proof from the injured party and gives him or her compensation for injuries regardless of who or what caused the accident. While this system is immensely helpful in many scenarios, sometimes, it is in an injured worker’s best interest to file a personal injury claim instead.

Personal injury claims for workplace injuries require the plaintiff (the injured worker) to prove the defendant (the employer or third party) was at fault for his or her damages. Proving fault for any type of personal injury accident requires four main elements:

  1. The defendant owed you a duty of care. As an employee at a company, your employer automatically assumes a duty of care to reasonably provide for your safety. This duty of care means your employer should not intentionally or negligently cause you harm.
  2. The defendant breached his/her/its duty of care. You must prove your employer was negligent in some way that contributed to your accident. Negligence may involve your employer’s safety practices, hiring or training procedures, equipment, rules and regulations, premises, or behaviors/actions. Proving negligence requires showing that another employer in similar circumstances would have acted differently.
  3. The defendant’s breach of duty caused your injuries. It is not enough to prove your employer was negligent. You must be able to show this breach of duty was the main cause of your injuries.
  4. You suffered damages. You must have suffered damages in the workplace accident such as personal injury, emotional distress, or property damage to file a claim. Otherwise, the courts won’t find anything to compensate you for.

If you believe your case has these four main elements, it is likely that you should file a personal injury claim instead of a workers’ compensation claim. Keep in mind that you can only file one or the other – not both. Once you file a workers’ comp claim, you give up your right to file a personal injury claim. Speak to an attorney for legal advice regarding your particular case.

Types of Compensation Available

The types of compensation an injured worker may receive also differ between workers’ comp and personal injury claims. A workers’ compensation claim can only compensate you for your medical bills, weekly lost wages, vocational rehabilitation costs, and permanent disability benefits. A personal injury claim, on the other hand, can lead to compensation for your lost earnings, lost capacity to earn, medical bills, future medical bills, permanent disability, lost quality of life, and pain and suffering. The difference in available damages is the main reason injured workers file court claims instead of workers’ comp claims after negligence-related accidents.

The Filing Process

Finally, the filing process is different depending on which type of claim you want to make. To file for workers’ compensation, find the forms online or speak to your employer to do so for you. Submit the forms and the requested information and wait for the insurance company’s response. To file a workplace accident claim against your employer or a third party, go through a local attorney’s office.

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