The Difference Between a Workers’ Compensation and Personal Injury Claim in South Carolina

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Annually in South Carolina, dozens of workers are injured on the job. Despite the fact that many of these accidents involve blue-collar workers such as construction workers, other professions like healthcare workers, manufacturing employees, and even office workers are also all at risk of a workplace injury.

When an accident on the job occurs and results in a worker injury, there can be two possible routes for recovering compensation depending upon the circumstances of the case.  In most instances, a worker can only recover workers’ compensation benefits for a work injury as workers’ comp is deemed to be an “exclusive remedy” under South Carolina law.  However, in those instances when the worker is injured due to the negligence of someone other than his employer or a co-employee, the worker can then pursue both a workers’ compensation and a personal injury claim. The following article discusses the differences of each claim type.

WORKERS’ COMPENSATION CLAIMS IN SOUTH CAROLINA

Almost all South Carolina employers are required by law to have workers’ compensation insurance. If a worker is injured on the job, this insurance is a no fault system that will pay for not only the injured party’s medical bills, but also a portion of their lost wages. A “no fault” insurance system means that a worker who is hurt on the job does not have to prove someone else was at fault to receive benefits. In exchange for no fault coverage, the worker gives up their right to file a civil lawsuit against their employer. Thus, the employer is given immunity, or liability protection.

When an employee is hurt on the job in South Carolina and they file a workers’ compensation claim, they have the right to be reimbursed for all of their necessary and reasonable medical bills incurred due to the injury, in addition to wage replacement at a rate of 66 ⅔ percent of their average weekly wage (this amount cannot go over $866.67 for the year 2020). Injured workers can also be reimbursed for gas mileage costs at 57.5 cents per mile for travelling to and from a doctor’s office. Benefits are paid following a week-long waiting period. It is required that the worker reports their injury to their employer within 90 days of the accident.

PERSONAL INJURY CLAIMS IN SOUTH CAROLINA

Personal injury claims and workers’ compensation claims are extremely different. First, workers hurt on the job that are covered by workers’ compensation insurance are unable to file a personal injury claim against their employers. However, these workers do have the right to file a personal injury claim against a third party (not their employer or a co-employee) and whose negligence caused their injury. For example, this third party could be the manufacturer of a defective and dangerous piece of equipment that caused a workplace accident or it could be an at-fault driver who caused a car wreck while the worker was in a work vehicle.

In a personal injury claim, the burden of proof falls on the claimant’s shoulders to prove that the other party was at fault.  The worker needs to prove that the third party committed an act of negligence. Further, they must prove that this act of negligence not only caused the worker’s accident and injuries, but also that they suffered damages due to this accident.

Unlike in a worker’s compensation claim, a personal injury claim makes it possible for a worker to receive compensation for intangible damages, such as their pain and suffering and loss of enjoyment of life, in addition to the compensation for medical expenses and lost wages. Further, in a personal injury claim, the worker is able to recover compensation for lost wages at 100 percent of their wages, as opposed to the 66 ⅔ percent of lost wages that they can recover in a workers’ compensation claim. Thus, while the worker is tasked with the burden of proof in a personal injury claim, this type of claim gives them a right to recover a more expansive scope of damages than are possible in a workers’ compensation claim. Finally, in a personal injury claim, you are given three years from the date of injury to file your claim, as opposed to 90 days notice requirement in a workers compensation claim.

CAN I FILE A WORKERS’ COMPENSATION CLAIM AND A THIRD PARTY LIABILITY CLAIM?

If you are classified as an independent contractor and not as an employee, and thus are not covered by workers’ compensation insurance, you have the right to file a lawsuit against the party offering you work if they were at fault in causing your accident. If you are an employee, and are covered by workers’ compensation insurance, you may be able to file both a workers’ compensation claim and a personal injury claim against a third party, but you do not have the right file a civil lawsuit against your employer.

If you believe that third-party negligence was the cause of your work accident injuries, you should contact an experienced personal injury attorney to discuss your case as soon as possible. It is important to keep in mind that both in filing both workers’ compensation and personal injury claims there are time limits that must be adhered to. It’s also important to know that there are procedures which must be followed to allow you to receive full compensation.  For example, if you improperly settle your third party claim without the written consent of the workers’ compensation insurance company, this can void your entitlement to workers’ comp benefits.  The sooner you reach out to an attorney about your claims, the more likely you are to recover full compensation.

CONTACT OUR LAW OFFICES TODAY

If you were hurt on the job and have questions about how to proceed, you should schedule a consultation with one of our highly experienced workplace injury attorneys at the Joye Law Firm today. We can help you to understand the various claim options, as well as guide you through the complicated process of deciding which claim type is best for you to pursue. In addition, we will gather evidence about your case on your behalf, prove that you deserve compensation due to damages you have suffered as a result of your accident, and negotiate with an insurance company to ensure that you are awarded your full settlement amount.  In many instances, we opt to have different lawyers handle a client’s workers’ compensation case and the third party liability claim based on what type of cases the lawyer focuses on.

Please contact us online or by phone today to schedule your free case consultation. We will work hard for you.

About the Author

Ken Harrell joined Joye Law Firm in 1994, and has been the managing partner since 2006. With 30 years of experience, he protects the rights of injured South Carolinians, including cases involving workers’ compensation, car accidents, and defective products. Ken also leads the firm’s referral practice, helping to ensure that our clients receive the best possible representation. He is a past president of South Carolina Injured Workers’ Advocates, and has served as the co-chairman of this organization’s legislative affairs committee for 12 years.