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Can I recover for pain and suffering in workers' comp?

UPDATED: July 13, 2020

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The least you need to know…

  • Workers’ compensation covers lost wages and the medical costs of an injury suffered on the job.
  • In order to recover for pain and suffering, you will have to pursue a personal injury suit rather than a workers’ compensation claim.
  • There are some extremely limited circumstances that allow for more recovery during a workers’ comp claim.
  • Workers’ compensation claims only offer settlements in exchange for the injured worker agreeing to opt out of payments for ongoing medical treatment.

You may be asking: Does workers' comp cover pain and suffering? Or can I recover for pain and suffering in workers' comp?

Unfortunately, recovering in full for pain and suffering is almost impossible, though sometimes, it is possible to recover for emotional distress. This is because workers’ compensation is a system that precludes the injured worker from suing, and pain and suffering is specifically excluded from workers' compensation claims.

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.

Frequently Asked Questions: Pain and Suffering Under Workers’ Compensation

Before we outline the specifics of how workers’ comp addresses pain and suffering, we want to try and answer some of the frequently asked questions you may have wondered about too.

How much is a typical workers’ comp settlement?

There is no typical workers’ compensation claim, so it’s impossible to know what the typical amount of compensation is. Nearly all workers’ compensation claims that are successful will cover lost wages as well as medical expenses related to the injury. 

Does Workers’ Comp cover lost wages?

Workers’ compensation is designed specifically to pay workers for injuries sustained on the job while limiting liability for employers. Nearly all successful workers’ compensation claims will cover the cost of the injury both in medical treatment and in lost wages. 

Many states require workers’ compensation to cover even long-term medical costs. Therefore, if you’re suing workers comp for a back injury that continues to impact you for years, you should be able to receive ongoing benefits as well. 

Workers comp includes chronic pain and other ongoing medical issues as long as you don’t agree to a settlement in exchange for ongoing treatment coverage.

How much money do you usually get for pain and suffering?

Workers’ Compensation rarely pays for pain and suffering. Under a workers’ compensation regime, the employer will only pay for lost work and medical expenses.

Can you sue if you accept workers' compensation?

The idea behind workers’ compensation is that the employer has to pay for injuries suffered at work, but in exchange, they are shielded from paying for non-physical harms. In some states, you can opt out of workers’ compensation and choose to pursue a lawsuit instead. 

Typically, the only way to recover for pain and suffering is through a lawsuit.

Nearly always, accepting workers’ compensation for injuries will bar your ability to sue for personal injury.

Can you sue workers' comp for negligence?

You don’t sue workers’ comp, you apply for and are awarded workers comp. A claim of workers’ compensation will only cover medical expenses and lost work, and there will be no additional compensation for negligence.

If you have the option to opt out of workers’ compensation, you will likely be able to file a suit alleging negligence against your employer.

How long do I have to sue for work-related injuries?

Different states have different statutes of limitations on personal injury claims. If you do not make a workers’ compensation claim, you typically have two years to file a lawsuit against your employer. No state has a statute of limitations shorter than one year, and some are as long as six.

Do all workers comp cases end in a settlement?

Most workers’ compensation claims are not settled. If you opt out of workers' compensation and pursue a personal injury suit, the possibility of a settlement is much more likely. Nearly all personal injury suits settle before reaching a final verdict.

If you’re wondering if workers comp will offer you a settlement in any circumstance, the answer is yes. Workers’ compensation claims cover ongoing medical expenses, and sometimes an employer will offer a settlement in exchange for an agreement not to make any further claims from the injury.

Whether you get a workers' compensation or personal injury with value of damages settlement, it would be a good idea to consult an experienced workers compensation attorney. 

Pain and Suffering Recovery Under Workers' Comp Rules

In addition to broken bones, pain and suffering also includes discomfort such as aches and stiffness and 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 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.

The Bottom Line

There are two different ways to recover from a personal injury, but only one allows for compensation for pain and suffering. If you receive workers’ compensation — and many workers don’t have the option to opt out after being injured — you will not be allowed to sue your employer for your injury.

Only a personal injury suit makes it possible to recover for pain and suffering from an injury, even if that injury was suffered on the job. Further, even if your suit is successful, there is no guarantee that pain and suffering compensation will be awarded. 

In most instances, a personal injury lawsuit will reach a settlement before getting to a jury verdict, anyway.

Did we answer all your questions about workers’ comp and pain and suffering? 

If you have been injured at work, you should have your specific questions and concerns addressed by an experienced workers’ compensation attorney. Use our search tool below by putting in your ZIP code and begin your search for workers’ comp help now.

References:

  1. https://www.dol.gov/owcp/dfec/regs/compliance/wc.htm
  2. https://www.law.cornell.edu/uscode/text/45/51
  3. https://www.dli.pa.gov/Individuals/Workers-Compensation/publications/Pages/WC%20Act/WC-Act-Landing-Page.aspx

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