We are often asked by prospective clients whether they can have an Illinois workers’ comp claim and personal injury claim at the same time, or whether the filing of one type of claim precludes the filing of another.

Some of the confusion is due to the common perception that when someone is injured in an accident the proper course of action is to file a personal injury case. However, if the accident occurs while you are at work, your first course of action may be to file an Illinois workers’ comp claim.

Under Illinois law, the filing of a workers’ compensation claim does not preclude the filing of a personal injury case for the same accident.

As a general matter, however, if your injury occurred at work you are not entitled to file a separate personal injury claim against your employer. You may have a separate cause of action against third parties that were also involved in or responsible for the accident.

What is the difference between an Illinois workers’ comp claim and personal injury claim?

There are several important differences between an Illinois workers’ comp claim and personal injury claim. First, a workers’ comp case is an insurance claim. The party responsible for paying for your medical bills and lost wages is your employer’s insurance company.

A personal injury lawsuit, however, is a claim against the party responsible for your injuries, which may or may not be your employer.

Second, there is an important difference in how you prove your case. In a workers’ comp case you must establish that your injury occurred at work and within the scope of your employment. This determination is made by applying the standards set forth under Illinois law for distinguishing between employees and independent contractors.

Just because your employer gives you the title of an employee does not mean that you are one under Illinois law. Moreover, you must be performing a job-related function at the time that your injury occurs in order to qualify or workers’ comp benefits.

In a personal injury case, you generally need to prove that the party that injured you did so willfully or negligently. In other words, you must prove that the other party was at fault and that the other party’s actions, or lack thereof, caused your injury. Thus, the distinction between the two claims is largely one of fault versus no fault. If an employee is injured at work and acting within the scope of his employment, he or she is automatically entitled to workers’ compensation benefits (no fault). In a personal injury case, you must demonstrate that another party was at fault in order to collect (fault).

What are the differences in compensation?

An Illinois workers’ comp case requires that your employer’s insurance company pay you for time missed from work, medical bills, and where there has been a permanent disability. You may recover up to 100% of your medical bills and two-thirds of your average weekly salary while off from work. These benefits are known as Temporary Total Disability benefits. Damages in workers’ comp cases are purely economic and do not include damages for things like pain and suffering.

Damages in personal injury cases are broader and more complicated. In addition to economic damages like actual medical expenses, victims in personal injury cases can recover for expenses likely to be incurred in the future. For instance, the victim can potentially recover the cost of future surgeries.

A personal injury victim can also recover 100% of lost wages rather than two-thirds under workers’ compensation law. Moreover, if the victim is unable to ever return to work, he or she may be able to recover for the loss in earning capacity caused by the accident. Finally, personal injury victims can recover for pain and suffering.

Can I file both a personal injury claim and a workers’ compensation claim?

You can file both a personal injury and workers’ comp claim but not against your employer. If you are injured at work your sole recourse against your employer is to pursue a workers’ compensation case. In fact, workers’ comp was designed to limit the ability of employees to sue their employers while also providing a system for injured employees to recover damages.

There are some cases where it may be appropriate to file both a personal injury and workers’ comp case.

The personal injury claim can be filed against a third party that is somehow responsible for the accident. A good example involving the filing of both types of cases is where an employee is injured while using a defective piece of equipment. The employee will file an Illinois workers’ comp claim against his or her employer to receive reimbursement for medical bills and time missed from work. The employee could also file a personal injury claim against the manufacturer of the equipment, as well as an independent third-party responsible for servicing the equipment.

What should I do if I have been injured at work?

If you are injured at work the most important thing is to seek immediate medical attention. Under the Illinois Workers’ Compensation Act, you are required to notify your employer within 45 days from the date that you were injured at work. Throughout the course of your case you will need to gather your medical records and bills. You will provide these documents to your employer, as well as your Illinois workers’ compensation attorney.

You are required to file an Illinois workers’ comp claim within 3 years of your accident. If you fail to file within this period of time, you will generally forfeit the right to file a claim. When filing a personal injury case there are also deadlines set by law in which you must file your complaint. Failure to do so will result in the forfeiture of the right to file your claim in the future.

Filing an Illinois workers’ comp claim is complex, even more so where multiple parties may be responsible for the accident. If you are unsure of which type of claim to file and who to file it against, contact us today to discuss your options.