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When Can You File for Both Personal Injury & Workers' Compensation?

Can you file both a workers’ compensation claim and a personal injury claim after being in a construction accident? It depends on your employment status and why the accident happened. If you are an employee, then you probably can only file a workers’ comp claim. An injured independent contractor can’t file for workers’ comp at all. A rare few workers might have the chance to do both.

When to File a Workers’ Comp Claim

Workers who are classified as employees must be given workers’ compensation in most situations and most states. If you are a construction worker who is an employee, then you are more than likely covered by workers’ compensation, which means you can’t file a personal injury claim against your employer after a workplace accident – in most cases. Instead, you have to use workers’ comp to get medical and wage replacement benefits.

Why is it fair that you don’t get to sue your employer for damages if you were in a serious construction accident that wasn’t your fault? The trade-off is that you’re supposed to be guaranteed workers’ compensation benefits regardless of liability, so you can still get them even if you’re mistake caused your injuries.

When to File a Personal Injury Claim

Workers who are classified as independent contractors are almost never covered by workers’ compensation insurance policies. Not even independent contractors working on notoriously dangerous construction sites are guaranteed workers’ comp if something goes wrong. As such, independent contractors are only able to file a personal injury claim against a construction company if they’re in an accident while working.

The trouble with filing a personal injury claim as opposed to a workers’ comp claim is that it introduces the concept of liability. Basically, if you’re filing an injury claim after a construction accident, then you need to be ready to prove that A) you were not the sole or primary cause of your accident and B) the defendant’s negligence contributed enough to the accident to make them financially liable for your damages. This is not an easy task for most construction accident claimants, so working with a personal injury attorney is more than recommended.

When to File a Workers’ Comp & Personal Injury Claim

In uncommon situations, you might be able to file a personal injury claim and a workers’ compensation claim if you were injured in a construction accident. The catches are that you need to be an employee and a third party other than your employer or a coworker must have caused the accident.

For example, you are struck by a cement truck driver who was texting while driving the vehicle to the next site. The cement truck driver is an independent contractor, and you are an employee of the construction firm overseeing the project. In this situation, you can probably file a personal injury claim against the cement truck driver and a workers’ compensation claim through your employer’s insurance policy. If you are provided damages through both claims, then you cannot be provided the same damage more than once. That is to say, you cannot be paid twice for your medical costs through both claims or any other form of damage duplication.

There is also the chance that you can sue your employer for a construction injury that was caused by egregious negligence or intentional wrongdoing, even if you also file for workers’ compensation. Such cases are rare and often require a court’s approval before proceeding far.

In any case, it is highly advised you work with a personal injury attorney after any construction accident to learn about your options. If you work on construction sites in or around Atlanta and were hurt, then Goldstein Hayes & Lina, LLC might be able to help you. Contact our firm to arrange a free, no-obligation consultation with one of the most trusted legal teams in the city.