If you have suffered an injury while on the job, it is likely you have questions whether to seek treatment through a workers’ compensation claim or a personal injury claim. The differences between the two is explained below.
What is Worker’s Compensation?
Worker’s compensation is a mandatory insurance program for all employers that covers compensation, benefits, and treatment for workers injured on the job. In Colorado, the Workers’ Compensation Act (Colorado Revised Statute § 8.41.203(1)) provides you are entitled to medical care and disability pay, along with other benefits, if you were injured while on the job, regardless of fault. However, there are extenuating circumstances relating to no-fault coverage. For example, benefits will likely be denied if an investigation reveals you intentionally injured yourself or you contributed to your injured.
Importantly, that your employer is required to file a Colorado Workers’ Compensation claim does not mean you are not able to also file a Colorado personal injury claim. If a third party is involved such as a defective product or co-worker, a civil suit can be filed outside of the workers’ compensation system. The circumstances surrounding the two types of claims are different so it is best to discuss your options with a Colorado personal injury lawyer.
What Types of Claims Can I Pursue in a Workplace Accident?
As it relates to workplace accidents, there are two prototypical categories: workers compensation and personal injury. A slip and fall incident is directly categorized as a premises liability claim in personal injury but you can also seek compensation if your injuries arose from your employer’s control or ownership of the premises where the injury occurred. Another example involves a motor vehicle accident. If you were driving for work when you were injured, you may be able to file a personal injury claim with the at-fault driver’s auto insurance company, but you may also file a workers’ compensation claim because you were on the clock at the time of the accident. Some of the most common causes of work-related injuries covered under workers’ compensation include:
- Overexertion: lifting or lowering and repetitive motions;
- Contact with Objects and Equipment: struck by or against an object or equipment; caught in or compressed by equipment or objects; struck, caught, or crushed in collapsing structure, equipment or material;
- Slips, Trips, and Falls: Falls to a lower level/ falls on the same level
In addition to the foregoing, you may be able to file a claim based on occupational illnesses that occur instantly or develop over a long period of time. Regardless of how quickly it develops, to be considered an occupational illness, it must be directly caused by work activities. Pre-existing conditions, ailments, or illnesses do not qualify, even if they are further exacerbated by the work or work environment. Some common occupational diseases include:
- Tennis elbow/golfer’s elbow;
- Hearing loss;
- Carpal tunnel;
- Computer vision syndrome;
- Lead poisoning;
- Sun poisoning;
- Lung diseases (black lung, cancer, etc.);
- Skin diseases (eczema, skin cancer, etc.);
- Reproductive disorders (caused by exposure to toxic substances).
The severity of occupational diseases range from mild to life-threatening, making it critical to file a workers’ compensation claim as quickly as possible.
Work-related car accidents are not relegated to the job site or your office. Many employees are injured while operating a vehicle as part of their job. Common work-related car accidents involve drivers performing a wide array of functions, such as (1) taxi drivers, (2) Lyft/Uber drivers, (3) UPS/ Fed Ex/ USPS drivers, (4) Grub Hub/ Uber Eats, (5) couriers, (6) commercial truck drivers, and (6) bicycle couriers.
Importantly, there are various circumstances that would disqualify an employee from seeking workers’ compensation benefits in a work-related car accident. These include (1) injured while driving under the influence, (2) injured while engaging in horseplay with another employee, (3) injured while performing a non-worked related function in your vehicle, and (4) intentionally injuring another person or yourself.
What Doctor Can I See?
By law, the workers’ compensation insurance company has to provide at least two options for medical treatment. If they fail to do so, you may choose a doctor of your choice. In most cases, the workers’ compensation insurance company will provide you with a medical provider. Regardless of whether you have been referred to a specific medical provider or if you chose one, the workers’ compensation insurance company can request to reassign a medical provider of their choice at their expense.
What if my Workers’ Compensation Claim is Denied?
The workers’ compensation insurance company may deny your claim for various reasons. For example, the insurance adjuster may deny your claim for (1) lack of sufficient information, (2) an incomplete investigation, or (3) if they determine the injury was not work related. If the workers’ compensation claim is denied for any of the aforementioned reasons, the workers’ compensation insurance company will file a Notice of Contest. You will then be responsible for all your medical bills resulting from treatment of your injuries.
In some cases, your claim may have been denied because your employer failed to report the injury. In other cases, your claim may have been denied because the workers’ compensation insurance company does not believe the circumstances surrounding your injury. Regardless of why your claim was rejected, your only option is to appeal and file for a hearing.
What is Worker’s Compensation Subrogation?
The most important thing to keep in mind for cases involving both workers’ compensation and personal injury is the workers’ compensation insurance company has a right to subrogation and indemnity liens that are very strong. More explicitly, Colorado law entitles workers’ compensation insurance companies to be repaid out of any personal injury settlement or awards for any amount the workers’ compensation insurance company has paid in the past or will pay in the future. That you might not be totally compensated by the personal injury settlement or award does not reduce the workers’ compensation insurance company’s right to be repaid. Any contrary result would amount to “double recovery.”
Is Workers’ Compensation Subrogation Negotiable?
The workers’ compensation insurance company is required to pay for attorney fees and litigation expenses for all amounts paid from the personal injury recovery. By way of example, many injured workers retain legal counsel to resolve a personal injury claim with the contingency fee agreement allowing the lawyer to be paid one-third of the recovery. Assume the injured worker resolved the personal injury claim for $30,000.00 and there is a worker comp lien for $15,000.00. In the absence of a negotiated alternate settlement, the workers’ compensation insurance company would be entitled to the full $15,000.00. However, the workers’ compensation insurance company would be required to reduce the subrogation by $5,000.00 to be paid to the lawyer as a fee for effectively recovering money on the injured party’s behalf. Accordingly, the workers’ compensation insurance company would receive $10,000.00.
Workers’ Compensation Resource Links
- Workplace Health and Safety: Information on workers’ compensation and links to information on occupational health and workers’ rights, provided by the AFL-CIO.
- Injuries, Illnesses and Fatalities (IIF) program: Statistics and articles on injuries, illnesses and fatalities in the workplace from the Bureau of Labor Statistics (BLS).
- Job Accommodation Network (JAN): A free consulting service for workers with disabilities and their employers from the U.S. Department of Labor that provides information about job accommodations, the Americans with Disabilities Act (ADA) and the employability of people with disabilities.
- Workers’ Compensation: An Overview: Overview of workers’ compensation law from Cornell Law School.
- National Institute for Occupational Safety and Health (NIOSH): Provides comprehensive information on workplace injuries from a division of the Centers for Disease Control and Prevention (CDC).
Contact a Colorado Personal Injury Law Firm to Learn More.
If you have been involved in an accident in the Denver area, call us at 720.863.6904 or email us for your free consultation. Our lawyers handle a wide range of personal injury cases, including Motor Vehicle Accidents, Bicycle Accidents, Pedestrian Accidents, Slip & Fall Accidents, and Dog Bites & Attacks. We service Arvada, Aurora, Boulder, Broomfield, Denver, Commerce City, Lakewood, Littleton, Thornton, Westminster, Wheat Ridge, and other parts of metropolitan Denver, Colorado.