Can I recover for pain and suffering in workers' comp?
UPDATED: February 20, 2013
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Unfortunately, recovering in full for pain and suffering is almost impossible. Sometimes, it is possible to recover for emotional distress. But under virtually all state Workers' Compensation Acts, the employee cannot sue the employer for pain, suffering, disability, or for causing an employee's injury. The only benefits that the injured worker usually recovers are wage-loss benefits and medical expenses for the work-related injury.
Pain and Suffering Recovery Under Workers' Comp Rules
In addition to broken bones, pain and suffering also includes discomfort such as aches and discomfort, as well as psychic injury associated with those pains...depression and embarrassment, for example. Generally, you won't receive compensation for pain and suffering in a workers' compensation claim. This is based on the fact that workers' compensation is almost entirely based on each state's own workers' comp system. Every state has adopted the same basic no-fault, elective system: if you file (or are required to file) for worker's compensation under a state's laws, you will lose the right to sue for pain and suffering. This is in clear contrast to personal injury cases, where pain and suffering are a typical part of the claims process. Workers' compensation claims, once filed, are meant to be the exclusive remedy.
Pain and Suffering for an Injury Caused by a Third Party
If a third party was responsible for your injury, you may be able to receive compensation for pain and suffering through a lawsuit against that third party. A 'third party' is someone other than the employer who may be liable for your injuries. This may include a co-worker, independent contractor, or even the manufacturer of equipment that caused the injury. In these situations, it may be possible to maintain a separate suit, including for pain and suffering, that would not otherwise be allowed under workers' comp rules.
When Pain and Suffering Might be Recoverable Under Workers' Comp
However, there have been workers' comp claims where pain and suffering were recovered. One possibility is when the claim is not filed under a state's limited laws. Instead, (for example) a claim under the Federal Employee Liability Act (not technically a worker's compensation program, and primarily designed for railroad workers) may see an award reflecting pain and suffering. Some states allow employees to opt out of workers' comp protection, but this usually must occur before the employee sustains his or her injury. If the employer failed to pay legally required funds for comp claims, an employee may be able to sue the employer in court, thus opening the door for a pain and suffering claim. But while it is virtually impossible to claim pain and suffering as part of a workers' comp claim, some states (California especially) do allow for emotional distress claims, as opposed to pain and suffering. Such claims, successful only when the employer deliberately caused the harm, are difficult to win.
In other states, however, no recovery for pain and suffering or for emotional distress is ever allowed under the workers' comp rules. For example, under the Pennsylvania Workers' Compensation Act, the employee is precluded from suing the employer for pain, suffering, disability, or for causing an employee's injury. The only benefits that the injured worker can recover are wage loss benefits and medical expenses for the work-related injury.