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June 14, 2023

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can you get pain and suffering with workers compensation

Those who suffer work injuries need compensation, both to cover their medical bills and to replace the income that they lost when they were not able to fully work as they did before.

Those who have suffered a serious injury often ask us can you get pain and suffering with workers’ compensation.

They want to receive as much as possible when they have been injured on the job.

The workers’ compensation system is unique in several ways.

One way is that it limits your compensation to economic damages, which excludes pain and suffering. This web page will address the common question raised by people injured on the job, ‘Can you get pain and suffering with workers’ compensation under Illinois law’?

To learn more about your legal rights after a job-related injury, call the law firm of Rosenfeld Injury Lawyers to schedule a free consultation.

A workers’ compensation lawyer can help you determine whether there is a way that you could qualify for additional financial compensation.

The Public Policy Behind Workers’ Compensation Benefits

The workers’ compensation system involves a series of tradeoffs. The law requires employers to carry workers comp insurance.

If your employer does not self-insure, they need to pay premiums to an insurance company. Thus, your employer incurs an expense so you can receive money from workers’ compensation claims.

The law gives an incentive to employers to obtain this insurance. Not only is it illegal not to have workers’ compensation insurance, but employers also cannot be sued for negligence by their employees in a personal injury lawsuit.

What You Can Receive in a Workers Compensation Claim

If you have successfully filed a claim for a work-related injury, you would receive benefits in the following areas:

  • Payment of reasonable medical costs that are necessary to treat your injury (including all future medical expenses)
  • A portion of your lost wages is up to a statutory cap. In Illinois, the statutory maximum is the average weekly wage in the state, which is updated semi-annually.

Pain and Suffering Damages Are Excluded from a Workers’ Compensation Claim

Workers’ compensation benefits only encompass things that may be thought of as economic damages. These are either direct costs that came out of your pocket or money that did not come into your pocket.

A workers comp claim will not pay you for non-economic damages. In a personal injury lawsuit, you are paid for the entire scope of your damages, including the experience of your accident.

A major part of non-economic damages is pain and suffering compensation. You can be paid for things like:

  • Physical pain
  • Emotional distress
  • Anxiety
  • Depression
  • Loss of enjoyment of life
  • Embarrassment and humiliation

If you have suffered a serious injury, this compensation can be considerable. However, the workers’ comp system does not cover these damages.

Theoretically, if insurance did cover pain and suffering damages, the cost for employers would be much more prohibitive.

It Is Virtually Impossible to Sue Your Employer for a Work Injury

In Illinois, there are very few limited exceptions to the rule that you can only file workers’ compensation cases for workplace injury. You can sue a third party as will be discussed below.

Illinois does not allow you to sue your employer for gross negligence. Essentially, the only way that you can sue your employer for a work-related accident is if they deliberately injured you.

Of course, you can also file a personal injury lawsuit if your employer did not carry workers’ compensation insurance in violation of Illinois law.

Why You Want to File a Personal Injury Lawsuit

A personal injury lawsuit will pay everything that injured employees could have received in a workers comp claim and much more.

The lawsuit award will cover the full cost of your medical bills. You can also receive your full lost wages (not two-thirds and not subject to a maximum cap).

Personal injury lawsuits also allow you to receive noneconomic damages for your lawsuit. Simply stated, your compensation will be much higher than you would receive in workers’ compensation cases.

Third Parties Against Whom You Can File a Personal Injury Claim

Since an injured worker cannot sue their own employer, they need to find a potentially liable third party if they want to file a personal injury case.

An experienced workers’ compensation lawyer should also have a background in personal injury law, so they can investigate your case to see if there are any personal injury claims.

Here are typical personal injury claims against third parties for a workplace injury:

  • You were driving for work, and you were injured by a negligent driver
  • The work machinery or equipment that you were using was defective
  • You were injured by an employee of another company at a construction site (such as another contractor, or the general contractor when you were working for a subcontractor)
  • You were injured on the premises of another when you were on the job
  • You were exposed to a toxic substance that came from somewhere other than your workplace

You Need to Prove Fault in a Third-Party Lawsuit

You would not automatically be able to recover damages in a third-party claim. You would need to meet your burden of proof to show that someone else was negligent. Our workers’ compensation lawyers would work to assemble your case.

Workers’ compensation laws dictate that the system is a no-fault one. You can recover compensation in a workplace accident, even if you were at fault. This principle does not hold true outside a worker’s compensation case.

Injured workers would need to meet their own burden of proof to show that someone else was responsible for their workplace injuries. If you have been injured by a third party, and you cannot prove negligence, you could still file a workers’ compensation claim.

If you choose to file a third-party claim, you could receive workers’ compensation benefits in the meantime.

If you receive a settlement, or you win your case in front of a jury, the workers’ compensation insurance company would be entitled to reimbursement, both for your medical expenses and the lost wages that they already paid.

You can go through the claims process and the lawsuit process at the same time.

How to Prove Fault in a Third-Party Lawsuit

In order to prove negligence in a third-party claim, you would need to show the following:

  • The third party owed you a duty of care
  • They breached the duty of care by acting unreasonably under the circumstances
  • You suffered an injury (whether it is a physical injury or emotional)
  • You would not have been injured had it not been for the actions of the defendant

Your personal injury lawyer would need to gather evidence that could prove every individual element for you to be able to win your lawsuit and recover pain and suffering damages, along with all the other damages to which you are entitled.

pain and suffering from workers comp

Contact Our Law Office for a Free Consultation

The attorneys at Rosenfeld Injury Lawyers are experienced in both workers’ compensation claims and personal injury lawsuits.

We will investigate your workplace injury to help you determine the best possible course of action.

Our lawyers can help you with a complex workers comp claim or a personal injury lawsuit. You can speak with us when you contact us online or call us at (888) 424-5757. Contact us today for a free consultation.

Here are some questions that we are commonly asked about workers’ compensation claims.

How do I win a personal injury lawsuit for a workplace injury?

You must show that there was a third party who was at fault, either through negligence or some type of intentional action.

Can I get punitive damages in a third-party claim?

Although punitive damages are rare in a personal injury lawsuit, you may still be in a position to receive them when you can show that the third party’s actions were egregious and shocking.

Can I get workers’ compensation and disability benefits at the same time?

You may be able to get public disability benefits in certain circumstances, but they could reduce the amount of your compensation.

Client Reviews

Jonathan Rosenfeld was professionally objective, timely, and knowledgeable. Also, his advice was extremely effective regarding my case. In addition, Jonathan was understanding and patient pertaining to any of my questions or concerns. I was very happy with the end result and I highly recommend Jonathan Rosenfeld.

- Michonne Proulx

Extremely impressed with this law firm. They took control of a bad motorcycle crash that left my uncle seriously injured. Without any guarantee of a financial recovery, they went out and hired accident investigators and engineers to help prove how the accident happened. I am grateful that they worked on a contingency fee basis as there was no way we could have paid for these services on our own.

- Ethan Armstrong

Jonathan helped my family heal and get compensation after our child was suffered a life threatening injury at daycare. He was sympathetic and in constant contact with us letting us know all he knew every step of the way. We were so blessed to find Jonathan!

- Giulia

This lawyer really helped me get compensation for my motorcycle accident case. I know there is no way that I could have gotten anywhere near the amount that Mr. Rosenfeld was able to get to settle my case. Thank you.

- Daniel Kaim

Jonathan did a great job helping my family navigate through a lengthy lawsuit involving my grandmother's death in a nursing home. Through every step of the case, Jonathan kept my family informed of the progression of the case. Although our case eventually settled at a mediation, I really was impressed at how well prepared Jonathan was to take the case to trial.

- Lisa
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