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Recovering for Personal Injury in a Workers Compensation Claim

Recovering for Personal Injury in a Workers Compensation Claim We are often asked whether you can file a worker’s compensation claim and a personal injury lawsuit, and the answer is yes. Workers compensation claims are injuries that are born out of a work related injury. In California any injury that occurs while you are at work, is under the jurisdiction of the workers compensation board. Unfortunately this is not the best news. Workers compensation claims ultimately limit your recovery for any PAIN AND SUFFERING. This essentially takes down a significant portion of your case value. However under certain circumstances you can file an independent claim for your injuries, resulting for a worker’s compensation claim. Filing A Separate Workers Compensation Claim Filing a case outside the standard jurisdiction of the workers compensation board requires a third party claimant. What is a third party claimant? This is essentially anyone other than your employer. For example if you word as a driver for a food service company, and are involved in auto accident, you will be entitled to pursue a claim for damages against the employer and the third party responsible for the accident. Any claim against a third party can account for any pain and suffering as well as other types of damages. However, filing a independent claim may not always be the best solution. In many states including California, the workers compensation board will allow for a subrogation lien or subrogation claim. Subrogation, means that any money you get from the third party can be deducted by money you get from your employer or workers compensation claim. If we were to consider the example above and plug in some hypothetical numbers, here is what it would look like. You are involved in an accident while driving a food truck. Your receive a settlement for $50,000 from your workers compensation claim. Then you file a separate claim against the third party for $100,000 and win. Then your workers compensation settlement can/may be deducted from your third party settlement. While this is not always a case it will be something you need to consider with your attorney. There are many other elements that would apply in the above mentioned example, so make sure you speak to your workplace injury attorney. Attorney Fees in Workers Compensation Case Unlike other types of cases, attorney fees in workers compensation cases are set by statute or law. This percentage is different in each state, but California allows for a 15% attorney fee. Attorney fees are always paid after the settlement. IF NO ATTORNEY FEES ARE AWARDED, THEN YOU OWE NO ATTORNEY FEES! I have heard of other attorney charging more than 15%, but by law in California you are not permitted to charge more than 15%.  


I just went through a worker’s comp mediation, in which I “washed out”(as my attorney referred to it) with a mere $2,500 cash settlement, all because the had me on a couple of technicalities: 1) it had been over one year since the statute of limitations, and 2) I did not pursue the required yearly medical examinations, beyond the initial appointment with the ENT doctor. However, my injuries occurred on Dec 29th, 2011, and I am therefore still within Florida’s Statute of Limitations re: Personal Injury. I feel as if my attorney is giving up too soon, because there are definitely 2 third-party corporations which, I feel, are implicated in my injuries: the office building within which I received my injuries, and the third-party contractor who was directly responsible for my injuries, and since my injuries are permanent, debilitating, and causing me constant suffering, I do not feel that $2,500 is a fair settlement. Thank You.

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