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Should I File Workers' Comp vs. Personal Injury in Washington?

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    Should I File Workers' Comp vs. Personal Injury in Washington?

    When you’re injured on the job in Washington, you face some critical decisions. One of the most important is determining whether to file a workers' compensation claim or pursue a personal injury lawsuit.

    While both offer an avenue for compensation, they differ significantly in their processes, benefits, and requirements. That’s why it’s crucial to make an informed decision that’s right for your specific situation. We’ll explore the key aspects of workers' compensation and personal injury claims in Washington State to help you decide.

    What Is the Difference Between Workers’ Compensation and Personal Injury Claims?

    The primary differences between workers' compensation and personal injury claims involve the context of the injury, the type of compensation available, and the need to prove fault.

    Fault and Liability

    Workers' compensation operates on a no-fault system. Employees can file a claim without having to prove that their employer or coworkers were negligent. The primary requirement is that the injury occurred in the course of employment and was connected to the work performed.

    In most cases, this means that a worker is covered even if the injury was their fault. For example, suppose that a worker climbs on a chair to reach an item instead of using a stepladder. The chair breaks and the worker falls, fracturing their leg. Workers’ compensation should still pay for the employee’s medical care and a portion of their wages while they recover.

    This system is designed to ensure quick and reliable compensation for injured workers. It also protects employers from costly lawsuits.

    Fault and Liability

    In contrast to workers' compensation, personal injury claims require the injured party to establish another party’s negligence or fault. This means showing that a duty of care was breached, directly causing the injury.

    These are some examples of negligence:

    • Failure to follow safety rules and requirements: A business failed to enforce safety protocols or provided inadequate safety equipment, leading to an injury.
    • Negligent property maintenance: The injury was caused by unsafe conditions on a property, such as a slip and fall on a wet floor without proper signage.
    • Negligent hiring or negligent entrustment: The business hired employees who were unfit for their roles or entrusted tasks to employees without training them.
    • Negligent driving: An employee was injured in a vehicle accident caused by another's negligent driving.
    • Product liability: A company manufactured or distributed a defective product that caused an injury.

    In most cases, employees cannot file personal injury claims against their employers. Therefore, a personal injury lawsuit due to a work injury is usually filed against a third party, sometimes in addition to a workers’ compensation claim.

    When Can a Worker Sue an Employer for an Injury?

    There are specific groups of workers who, due to the nature of their employment, do not fall under the typical workers' compensation statutes and thus retain the right to sue their employers directly. Two notable examples are crew members of vessels and interstate railroad workers, who are covered under different federal laws.

    For crew members on any type of vessel — whether a large cruise ship or a small commercial fishing boat — workers' compensation benefits do not apply. Instead, they are protected by the Jones Act, a federal statute that allows them to sue their employer for negligence if they are injured while working.

    The Jones Act provides these maritime workers with the ability to pursue compensation for a range of damages, including medical costs, lost wages, and pain and suffering.

    Interstate railroad workers who operate trains that cross state lines are also exempt from standard workers' compensation coverage. Instead, these workers are covered by the Federal Employers Liability Act (FELA), which allows them to bring lawsuits against their employers for injuries sustained on the job.

    FELA differs from the no-fault nature of workers' compensation in that the employee must prove that the railroad was at least partly negligent in causing the injury.

    When Can a Worker Sue an Employer for an Injury


    Workers' compensation is designed to provide benefits to employees who are injured while performing their job duties.

    However, not every person in the workforce is covered. Generally, to be eligible for workers' compensation, you must be classified as an employee. In Washington, certain types of independent contractors, freelancers, and volunteers do not qualify. Some 1099 workers do qualify, however, depending on the nature of the work they perform.

    Most employees, including full-time, part-time, seasonal, and undocumented workers, should be covered under workers' compensation insurance. Certain categories of workers, such as farm workers or temporary workers, might have different eligibility criteria.

    In contrast, personal injury claims provide an avenue toward compensation for injuries not covered by workers’ compensation insurance. Employees injured on the job may be eligible to file lawsuits against third parties other than their employer, such as contractors, equipment manufacturers, or other drivers in the case of vehicular accidents.

    Someone injured on the job might turn to a personal injury lawsuit in the following situations:

    • The injured worker’s employer failed to maintain workers’ compensation coverage.
    • The worker was a contractor who was not covered by workers’ compensation.
    • A third party, such as a manufacturer or driver, was responsible for the injury.

    Unlike workers' compensation, personal injury claims require the claimant to prove that the opposing party’s negligence or intentional act caused their injury. This involves demonstrating that the party had a duty to act safely, breached that duty, and caused damages as a result.


    Compensation and Damages

    Workers' compensation is designed to provide quick and assured financial assistance to employees who get injured on the job, no matter who is at fault.

    These types of compensation are available under workers' comp:

    • Medical expenses: Full coverage of all medical treatments related to the work injury, including hospital visits, medications, physical therapy, and any necessary surgeries.
    • Lost wages: Partial compensation for lost wages (typically amounting to about two-thirds of the employee's average weekly wage).
    • Disability benefits: Temporary or permanent benefits, classified into partial or total disability based on the impact of the injury on the employee’s ability to work.
    • Rehabilitation costs: Vocational rehabilitation to help the injured employee return to work or train for a new position.

    Personal injury claims offer a broader range of potential compensation because they aim to fully compensate the injured party for all losses resulting from the accident, provided that fault can be proven.

    Damages can include:

    • Medical bills: Compensation for all past and future medical expenses, but without certain restrictions or limits imposed by workers' compensation providers.
    • Full lost wages: Recovery of all lost income, not just a portion, and potential compensation for future lost earnings.
    • Pain and suffering: Compensation for the physical and emotional distress caused by the injuries, which is not available through workers’ compensation.
    • Loss of quality of life: Compensation for any loss of enjoyment of life resulting from the injuries, from physical activity limitations to emotional and psychological damages.
    • Punitive damages: Awards that punish the wrongdoer and deter similar behavior in the future in rare cases of egregious negligence or malicious actions.
    Compensation and Damages

    Compensation from a personal injury lawsuit has the potential to be higher than that for a workers’ compensation claim. However, the outcome is less certain, and many injured workers are not eligible to file lawsuits.

    Statute of Limitations

    The statute of limitations for workers' comp claims in Washington involves two key deadlines.

    First, you must notify your employer of the injury within 30 days of the incident or the day you became aware of the injury. Failing to report the injury within this time frame can jeopardize your ability to receive benefits.

    After notifying your employer, you have one year to file a formal workers' compensation claim. This deadline typically starts from the date of the injury or the date on which you became aware of the injury as work-related.

    Personal injury claims generally allow a longer period to initiate legal action. In Washington, you have two years from the date of the injury to file a lawsuit. This time limit applies to most types of personal injury cases, including auto accidents, slip-and-falls, and defective products.

    Do I Have to Choose Which Claim to File?

    When you suffer an injury at work, you may have immediate access to workers' compensation, which is designed to provide benefits like medical care and wage replacement without the need to establish fault. Importantly, filing for workers’ compensation does not prevent you from also pursuing a personal injury claim.

    When Should I Consider Both a Personal Injury and a Workers' Comp Claim?

    When you're injured on the job, determining whether to file for workers' compensation benefits, pursue a personal injury lawsuit, or both can depend on several factors.

    The most common scenario for pursuing both workers' compensation and a personal injury claim is when a third party is responsible for your injury. If a third party — someone other than your employer or a coworker — contributed to your injury, you may have grounds to file a lawsuit against that party.

    Another instance where you might consider a personal injury claim in addition to workers' comp is if another employee intentionally caused your injury, such as if they assaulted you at work. If your employer was grossly negligent in hiring or supervising that employee, you may also have a claim against your employer.

    When Should I Consider Both a Personal Injury and a Workers' Comp Claim?

    Workers’ Compensation vs. Personal Injury Claims: Which Is Right for You?

    Deciding between filing a workers' compensation claim or a personal injury lawsuit depends on the specifics of your situation, including the nature of your injury and how it occurred.

    If you're faced with this complex decision, contact Lehmbecker Law today. Our personal injury attorneys are ready to help you determine the best course of action and fight for the justice and compensation you are entitled to.

    Contact Lehmbecker Law Today

    Are you an injured worker looking for a path to compensation? Let our experienced attorneys fight for the benefits you deserve.

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    Larry A. Lehmbecker
    Firm Founder, Larry Lehmbecker, has nearly 40 year’s of experience fighting for the injured in Washington State. He is always eager to share his knowledge to help those in need.
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    Can you sue if you accept workers' compensation?

    Generally, accepting workers' compensation benefits means you cannot sue your employer because workers’ comp is considered to be the exclusive remedy for those injured on the job. However, you might still be able to sue third parties who contributed to your injury.

    Do you get a settlement from workers’ comp?

    Yes, in many cases, workers' compensation claims result in a settlement. This settlement can provide a lump sum or structured payments covering medical expenses and lost wages related to the work injury.

    Can you get pain and suffering from workers' compensation?

    No, you cannot receive compensation for pain and suffering through workers' compensation. This system is designed to cover medical expenses and a portion of lost wages but does not include compensation for emotional distress or pain and suffering.