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Should I File for a Workers’ Comp vs. Personal Injury Claim?

Grimes & Fertitta > Personal Injury  > Should I File for a Workers’ Comp vs. Personal Injury Claim?

Should I File for a Workers’ Comp vs. Personal Injury Claim?

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If you’re injured at work, should you file a claim for workers’ comp vs personal injury? The answer depends on the circumstances. Generally speaking, workers’ compensation is available for any injury or illness related to job duties and responsibilities, whereas a personal injury claim may be necessary if the injury was caused by someone else’s negligence or intentional wrongdoing.

These two claims are common, and while they may seem similar, they have different characteristics and offer different amounts of compensation. It’s important to understand the differences between these two types of claims in order to determine which is best for your situation.

Contact the work injury lawyers at Grimes & Fertitta to gain clarity and determine the best way for your family to move forward before you sign anything that may impact liability.

Workers’ compensation vs. personal injury claims

Workers’ compensation claims are typically handled by the employer or their insurer, and provide benefits such as medical coverage, lost wages, and in some cases disability payments. On the other hand, personal injury claims can be filed with a court to seek monetary damages from the responsible party.

The main differences between workers’ comp and personal injury claims can be summed up into five key points.

  1. Who is injured?
  2. Is proof of fault needed?
  3. Can you sue?
  4. What benefits can you receive?
  5. How long do you have to file?


In order to determine which type of claim is best for you, it’s important to consult with an experienced personal injury lawyer who can assess the facts and provide advice tailored to your unique situation. A Houston personal injury lawyer will be able to help you decide whether a workers’ compensation vs personal injury claim is appropriate for your circumstances, as well as provide guidance throughout the process.

Should I file for workers comp?

Workers’ compensation is an insurance program managed by the State of Texas. It provides medical benefits and lost wages to employees after a work-related illness or injury. In order to receive benefits, you do not need to prove fault.

You simply must show that the injury or illness was caused by job duties and responsibilities. Furthermore, you cannot sue the employer for damages or other compensation.

The main characteristics of a workers comp claim include:

  • You must be an employee
  • Fault is not required
  • You lose your right to sue
  • No benefits for pain and suffering
  • In Texas, you have one year to file a workers’ comp claim

In most workers’ comp claims you will receive no-cost treatment and 70% of your average lost wages. You may receive medication and follow-up visits from the company doctor, but that’s usually the scope of your benefits.

Should I file a personal injury claim?

Unlike a workers’ compensation claim, a personal injury claim can provide a larger payout for more serious injuries. However, to recover damages against someone in a personal injury claim, the other person must be negligent, meaning that they must have done something wrong that contributed to your injuries.

Elements of a negligence claim involve that the other person owed you a duty of care, they breached that duty, and because of that breach you suffered an injury.

The main characteristics of a personal injury claim include:

  • Anyone is eligible to file
  • Fault is required
  • You can sue
  • Can include damages for pain and suffering
  • You have two years to file a personal injury claim

In a personal injury case, the victim may be able to recover damages for pain and suffering, lost wages, medical expenses, and other costs related to the injury. The amount of compensation a person may get depends on the severity and impact of their injury, as well as any evidence gathered to prove their case.

Your rights as a worker in Texas

There are a few governing bodies, such as Occupational Safety and Health Administration (OSHA), to keep employees safe on the job. The Occupational Safety and Health Administration (OSHA) ensures that employers provide a safe working environment for employees. OSHA sets safety standards to protect workers from physical and mental harm.

Under the OSHA Act of 1970, you have the legal right to:

  • Work in a safe, hazard-free workplace with proper equipment, maintenance, and training
  • Receive information, education, and training on potential hazards and how to avoid injury or illness
  • Review all OSHA standards and laws, including records of work-related injuries and illnesses
  • File a complaint with an OSHA inspector without retaliation from your employer

If you feel like your rights have been violated, you should report the violation to OSHA immediately and contact a personal injury attorney from Grimes & Fertitta for help in filing a complaint.

What jobs aren’t covered by workers compensation?

There are two primary areas of employment that don’t fall under the Texas workers’ compensation laws because they are federally protected.

  1. Ship workers: Any persons, whether they are crew, kitchen staff, or captain, who spend at least 30% of their time aboard a vessel are protected by The Jones Act. The Jones Act goes beyond workers’ compensation to offer civil suits with a trial by jury.
  2. Interstate railroad workers: The Federal Employers Liability Act (FELA), gives interstate railroad workers the ability to sue their employer for damages resulting from an on-the-job injury.


Can you sue your employer for injury in Texas?

In most cases, no. If you file a workers’ compensation claim you cannot sue unless your employer does not carry workers’ compensation insurance. However, you can sue 3rd parties if their negligence played a role in your injury or if you believe their negligence resulted in your injuries.

Several reasons you may be able to sue include:

  • Your employer doesn’t carry workers’ compensation insurance
  • You were injured by a defective product or toxic substance
  • You were injured because of your employer’s intentional conduct
  • A third party, such as a customer or vendor causes your injury

What can be included in a personal injury claim against an employer?

Workers’ compensation and personal injury settlements vary depending on the severity of the injury. The amount of compensation you can receive may include:

  • Medical bills, past and future
  • Prescription medicines
  • Rehabilitative therapy and treatment
  • Lost pay and reduced earning ability
  • Disability or disfigurement
  • Pain and suffering

If you’re filing through personal insurance for your injuries and plan to sue for the costs, you may be wondering, how much does Progressive pay for pain and suffering? Pain and suffering are evaluated on a case-by-case basis and includes both physical and emotional pain.

Do I need a lawyer to file for workers’ comp or a personal injury claim?

You are not required to have a lawyer in order to file for workers’ comp. In fact, our firm will not take workers’ compensation cases if workers comp is provided by the company. For example, if you’re injured while on your shift at Walmart and they take care of all your medical bills then there’s no need for us to get involved.

However, we are here to answer any questions you may have. If you are wondering, “should I file for workers comp or a personal injury claim?” There may be special circumstances that will necessitate a personal injury lawsuit instead of a claim for workers’ comp.

If you feel that your rights have been violated, we recommend contacting an attorney as soon as possible. Specifically if:

  • You have a preexisting condition
  • You do not trust company doctors
  • You’re being accused of fraud
  • You are being forced back to work quickly

For personal injury claims, you should always hire a lawyer with experience handling cases like yours. Proving negligence can be difficult and the need for fair compensation is critical. An experienced lawyer will be able to guide you through the process and work to secure the maximum amount of compensation possible.

Think you may have a personal injury lawsuit on your hands? Call Grimes & Fertitta.

When trying to decide whether to file a workers comp vs personal injury claim, it’s important to have an experienced attorney on your side. If you were injured due to their negligence, your employer may try to avoid accepting fault and paying out fair compensation, leaving you in a vulnerable position.

At Grimes & Fertitta, our experience as insurance defense lawyers gives us insight into the methods employed by insurance companies to avoid accountability. This inside knowledge and experience can help prevent your compensation from being affected by these challenges and obstacles. You’ll be hard-pressed to find better experts in Texas negligence law than us.

Do not accept anything that will not cover the true cost of the harm you’ve endured. Call the top-rated personal injury attorneys from Grimes and Fertitta at (713) 224-7644 or contact us online to get started!

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