A workers’ compensation claim and a personal injury case are completely different things. If you have been injured it is important to understand which kind of case you have, or if maybe you have both, and the differences between the two.
Is the injury related to your job?
A worker who is injured on the job in NC may have a workers’ compensation claim. The injury must come from an accident that happens in the “course and scope” of the work. Not all workplace injuries are covered by workers’ compensation in North Carolina. Workers who develop an occupational disease in North Carolina may be covered by workers’ compensation if their employment put them at risk for the condition. The point is that to have a workers’ compensation case in NC the injury or medical condition must be related to your employment.
Personal injury cases on the other hand can happen anywhere and do not need to be related to your employment. Typical examples of personal injury cases include automobile accidents, slip and falls, and professional malpractice.
Was somebody else at fault?
With workers’ compensation, it does not matter who was at fault in causing the injury. An injured worker does not have to prove that the employer was at fault. In fact, an injured worker can receive workers’ compensation benefits in North Carolina even if the worker accidentally causes the injury. In workers’ compensation, fault does not matter as to whether the claim is valid or not.
In a personal injury claim the injured person must show that the person who caused the injury was “negligent.” Negligence means the breach of a legal duty of care resulting in an injury and damages. In other words, negligence is hurting someone because you are not being careful enough. (Although my law school torts professor would have disapproved of that definition.) In a personal injury case in North Carolina, if the injured person is partly at fault in causing the injury, his or her claim may be barred. This is called “contributory negligence.” In North Carolina, an injured person who contributes even 1% to his or her own injury may not be able to recover at all.
Who do you file your claim against?
If you are injured on the job in North Carolina, you should file your workers’ compensation claim against your employer’s workers’ compensation insurance company or workers’ compensation administrator. This claim will be handled by the North Carolina Industrial Commission. With very few exceptions you cannot file a lawsuit for a workplace injury against your employer in civil court, even if you were injured because of your employer’s carelessness. Again, in workers’ compensation cases fault does not matter. Your only option is to take your claim to the Industrial Commission. This is known as the “exclusive remedy” provision. The exclusive remedy rule also applies if you are hurt at work because of the carelessness of a co-worker. Again, you must file the claim with the Industrial Commission.
Deciding who to recover from in a personal injury claim is a little more complicated. You can seek to recover from the person or people whose lack of care caused your injuries. If you are injured in an automobile accident that is someone else’s fault, and that person was driving a vehicle owned by a family member, you may be able to recover from the vehicle owner. If the person who injured you was acting as an employee of a company you can also seek to recover against that company.
Where, when and how do you file your claim?
If you are injured on the job you must file your North Carolina workers’ compensation claim with the North Carolina Industrial Commission. In most cases, you must file your claim within two years. You should also give notice right away to your employer. The Industrial Commission is a government agency responsible for administering workers’ comp claims in North Carolina. The Industrial Commission decides disputes between injured workers and their employer’s workers’ compensation insurance company, including whether an injury or occupational disease is covered by workers’ comp, what medical treatment should be provided, and what wage replacement benefits are owed. The Industrial Commission also reviews all workers’ compensation settlements in North Carolina.
If you are injured because of someone’s carelessness and have a personal injury claim, you can file a lawsuit in civil court. In most cases, you have three years from the date of the injury to file your lawsuit, but there are many exceptions to this rule. Most claims can be filed in the county where you live or where one of the people you are suing lives. Your lawsuit, call a “complaint,” must be filed with the Clerk of Court and must be delivered to or “served” on each defendant. A judge will make decisions about who should be involved in the lawsuit, what evidence can be used, and when the case will be heard. You have the right to have your damages decided by a jury in a personal injury case.
What can you recover?
Workers’ compensation in North Carolina provides two benefits, medical treatment paid for by workers’ compensation for the injured body part, and workers’ compensation disability payments. Workers’ compensation does not pay pain and suffering or other types of damages.
If you have a personal injury case you may be able to recover a much broader range of damages, including past and future medical expenses and wage loss, as well as for pain and suffering.
Can you have both a workers’ compensation case and a personal injury claim?
If you are injured on the job through the carelessness of someone who is not an employer or co-worker, you may have both a workers’ compensation claim and a personal injury claim. You can and should pursue both. An example would be if you were injured in an automobile accident while on the job in North Carolina. The workers’ compensation insurance company may be able to recover money it pays on the workers’ compensation claim from the personal injury case so the cases must be carefully coordinated.
Kevin Bunn is a North Carolina workers’ compensation lawyer. He has practiced law in Cary, North Carolina, since 1993. Kevin is a Board Certified Expert in North Carolina Workers’ Compensation Law, a member of the North Carolina Industrial Commission’s Advisory Council, a past Chair of the NCAJ Workers’ Compensation Section, and serves on the NCAJ Board of Governors. For more information about Kevin and his law practice please visit ncworkercomp.com.