Does Workers Comp Pay for Pain and Suffering?

Let me be straight with you right from the start, because when you’re hurting, the last thing you need is a runaround.

No. Workers’ compensation does not pay for pain and suffering.

I know, it sucks. Especially when you are stuck at home due to a severe work injury, and your medical bills are accumulating, and it seems that the Workers’ Compensation System has been set up to cheat you.

I have heard this complaint from countless numbers of injured workers – and rightfully! The workers’ comp system is restricted by its design, and although that is discouraging, the “no” answer is not the end of your story.

There are many legitimate legal ways to pursue more money than what workers’ compensation will pay you, including pain and suffering damages; by the time you finish reading this guide you will know what your options are. So let us go through all the options for you step by step, in easy to understand terms.

Why Workers’ Comp Doesn’t Cover Pain and Suffering

Most people do not understand this, but Workers’ Compensation was created as a compromise. It is not a good compromise, but nevertheless, it is a compromise.

Before the establishment of Workers’ Compensation systems, if you got hurt at work, you had to take your employer to court to get any compensation. Taking them to court meant that you had to establish fault, wait for weeks or months for a decision, and you may have received nothing at the end of the process. 

On the other hand, employers were faced with exposure to huge, unpredictable liability for any accidents occurring at the workplace, including accidents that were not the result of the employer’s negligence.

The trade-off is:

Workers’ compensation is a no-fault system, meaning that it does not matter whether you or your employer are responsible for the accident or if the accident is just a freak occurrence. If you were injured at work, your job was the primary cause of the accident, and generally workers’ compensation will provide you with benefits. Therefore, you will not have to wait to go to trial, etc. as you would in a tort case.

But that streamlined simplicity comes at a cost: non-economic damages, the catch-all category that includes physical pain, emotional distress, and loss of life’s enjoyment, are simply not part of the equation under standard workers’ comp.

What Workers’ Comp Does Cover

Pain and suffering claims are not allowed under Workers Comp. So typically, you will feel quite a bit from Workers Comp.

Most Workers Compensation benefits fall into following categories:

Medical Treatment

There is no limit on how much medical care you can receive for your work injury. You can receive any and all reasonable and necessary medical treatment to control your injury including: doctor’s visits; surgery; prescriptions; physical therapy; inpatient/outpatient rehabilitation services; consulting specialist physicians; etc.

Lost Wages (Temporary Disability Benefits)

Workers Compensation replaces a portion of your income while you recover from your work-related injury. Workers Comp pays about 66 2/3% of your average weekly wage, up to a maximum set by your state.

Permanent Disability Benefits

Permanent disability benefits are available to workers who suffer a lasting disability as a result of their work injury (e.g., losing the use of a limb / developing a chronic condition, etc.), either by the payment of a lump sum or by making ongoing payments (depends on the law of the injured worker’s state).

Vocational Rehabilitation

If your work-related injury results in your inability to return to your prior job, Workers Compensation may pay for your retraining and/or job placement assistance and/or educational programs to help you return to work.

Death Benefits

If a worker dies due to a workplace injury, the surviving family members of the deceased worker may be entitled to death benefits, including a wage replacement benefit and/or payment of funeral expenses.

These are meaningful, real benefits. They don’t require you to fight anyone in court. And knowing how long you have to report a work injury in your state is critical, most states have strict deadlines, often ranging from 30 to 90 days after the incident, so don’t wait.

Exceptions, When You Might Still Recover Pain and Suffering

Many injured employees don’t know that they may be entitled to receive compensation for pain and suffering due to injuries sustained at work. 

Below are some instances where injured employees can seek compensation for pain and suffering (along with injuries) resulting from accidents in the workplace:

1. Third-Party Liability Claims

This is absolutely the biggest category of cases without a doubt, and happens more frequently than most people realize. If a third party caused or contributed to your injury, you may be able to file a personal injury lawsuit against the third party (which would be separate and distinct from any workers’ compensation claim), and personal injury lawsuits allow you to pursue pain and suffering damages.

Third parties may include:

For example, as an example, if you happened to be working as a construction worker and fell from a scaffold because the manufacturer built the scaffold incorrectly, you can collect your workers’ compensation benefits from your employer and then turn around and sue the manufacturer of the scaffold for any pain and/or suffering caused by the injuries you suffered as a result of their defective product.

2. Willful Misconduct or Intentional Injury by the Employer

The protection from legal action that employers have under workers’ compensation laws is not absolute. Currently, in many states, if your employer has intentionally injured you or committed some flagrant act of misconduct that is worse than mere negligence, you have the right to bring a lawsuit against them in a civil court, without having to use the workers’ compensation system.

To prove this, you must show that you had a serious and obvious risk and your employer created the condition that presented the risk or allowed it to continue to exist when they knew it was dangerous to their employees.

The most blatant cases of this involved employers who lied about their safety procedures or conditions known to be unsafe or hazardous to the worker. In these cases, you would have a clear case to file for a lawsuit in civil court.

In order to prove this, you will require the assistance of an attorney with significant experience in handling these cases. Positive proof and experience with compensation under workers’ compensation will outweigh the benefits of using the workers’ compensation system alone.

3. Employers Not Carrying Workers’ Compensation Insurance

While not the most common thing to think of when discussing legal cases and employers, there are many states that will allow employees who are injured in the workplace while working for an employer without a legally required workers’ compensation insurance policy to sue their employer directly for personal injury, and therefore receive a larger amount in compensation than would be available from the workers’ compensation system.

This isn’t common, but it happens, especially with smaller employers or contractors. If you’re unsure whether your employer was properly insured, a workers’ comp attorney can find out fast.

How to Pursue Pain and Suffering Outside Workers’ Comp

If you’ve experienced any of the situations mentioned above then here’s what you should do next:

Step 1: Before Accepting Any Settlement Have An Attorney Provide You With Legal Advice

If you accept a final settlement, it may be possible for you to waive your rights to certain claims that you were not aware of before. Consult your lawyer before signing anything.

Step 2: Identify All Potentially Liable Third Parties

Your attorney will investigate the circumstances of the accident, and determine who (if anyone) is liable for your injury. Liability can also include third party individuals, manufacturers of products, property owners, contractors, etc.

Step 3: Document Everything!

By keeping good documentation about your medical history, psychological state, daily pain journal, and segmenting off of your injury there is more opportunity for you to gather supporting evidence for your pain and suffering claim. Proof of non-economic damage is extremely difficult because it cannot be substantiated by an accounting record and therefore, the documentation you provide will fill this gap.

Step 4: File Within Time Limitations

When you have a personal injury claim resulting from an accident there are statutes of limitations that will vary from state to state and can be as short as two years to up to 3+ depending on your jurisdiction. Do not delay in filing!!

Step 5: Coordinating Of Claims

Make sure you have retained counsel to prosecute both your workers’ compensation claim and your personal injury lawsuit in order to properly manage all obligations relating to reimbursements, offsets, etc. for the two claims with the same attorney or with attorneys who are working closely together.

Understanding Punitive Damages: A Separate Category

When talking about additional compensation, it’s also good to know that punitive damages exist, which are different from pain and suffering damages.

Punitive damages are not for compensating your loss but to punish the employer or third party for its conduct. Courts use punitive damages to send a message regarding unacceptable conduct that ignores human safety will cost you a lot of money.

Punitive damages are not awarded in every case, and usually not in most, however punitive damages can add a lot of money in cases involving malicious behavior/intentional acts or outright fraud, or complete disregard for individuals’ health and safety. Therefore, be sure to explore all of your legal rights, and do not assume that the only recourse you have available to you is through workers’ comp.

Should I Get a Workers’ Comp Lawyer?

At this stage of the game, you’re likely asking yourself, “Is it really necessary to hire a lawyer?” 

To be completely honest, if your injury was sustained on-the-job, you probably do need a lawyer. 

The reason: 

Workers’ compensation claims may appear to be straightforward, yet insurance companies exist to minimize their payout obligations. A lawyer who specializes in both workers’ compensation claims and personal injury litigation can amicably manage your workers’ compensation claim, along with reviewing the possibility of a third-party claim (lawsuit). 

Managing both a worker’s compensation case and a personal injury case involves two distinctly different areas of law; unfortunately, few law firms provide a competent amount of experience in either area of practice. Because of this finding a law office that has provided equal experience in both areas of practice becomes even more critical. 

A well qualified attorney who provides services related to workers’ compensation will ascertain if there is a valid and legally supportable third-party claim; identify all possible liable parties; develop adequate medical documentation; protect you against settling once; and pursue for you the greatest amount of money available based upon every possible theory of liability. 

The majority of attorneys who provide services related to workers’ compensation claims and injuries utilize a contingency fee agreement. 

Therefore, it costs you nothing to consult with an attorney to secure an attorney. There may not be any financial barriers to retaining an attorney; however, do know that you will not have any financial ties to an attorney until your workers’ compensation claims and/or personal injury litigation is resolved in your favor. 

Bottom Line

If you’re wondering whether workers’ compensation will pay for your pain and suffering, the only way to find out for sure is to speak to a lawyer who can review your case.

Frequently Asked Questions

Q. Does workers’ compensation in any state cover pain and suffering?

A. No workers’ compensation system includes compensation for pain and suffering. This is a part of the workers’ compensation system as designed, there is no variation in this area between states. However, exceptions exist, including third-party claims, employer misconduct, and working for an uninsured employer, which may vary from state to state.

Q. Can I sue my employer for pain and suffering if I have filed for workers’ compensation?

In most cases, you cannot sue your employer for pain and suffering if you have already filed for workers’ compensation. This is because by filing for workers’ compensation you have accepted the “go with” option and waived your right to sue your employer for any type of damages. The only exception would be if your employer has intentionally injured you, intentionally engaged in misconduct, or is an uninsured employer.

Q. How long do you have to report a work-related injury to protect your rights?

Most states require that you give written notice to your employer of your work-related injury within 30 to 90 days after you were injured. A few states allow for up to one year; however, the longer you wait to report your injury, the more your claim at risk. So, report your work-related injury to your employer as soon as possible.

Q. What if my mental health suffered because of the workplace injury? 

Workers’ compensation does not provide benefits for emotional distress or post-traumatic stress disorder (PTSD) as it relates to pain and suffering. Some states allow coverage for treatment of mental health conditions that result directly from a workplace injury by way of workers’ compensation insurance. Additionally, pursuing a third-party claim may also provide compensation for emotional distress.

Q. How much is a typical workers’ compensation settlement? 

The severity and permanence of your injury, your average weekly wage, state benefits formulas and whether or not there are any third-party claims against you will all impact the settlement amount. A workers’ compensation attorney can provide you with an estimated settlement value based on the facts.

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