“What is the value of my case?” is the question our Illinois attorneys are frequently asked when meeting a client for the first time. The short answer is “it depends.” In this article, we'll focus only on the question of value as it relates to the difference between a worker's compensation and personal injury lawsuit.

A worker's compensation claim arises when an employee has an accident which “arises out of” and “in the course of” his/her employment. Under Illinois law, a person injured on the job is restricted to the remedies of the Workers Compensation Act. A lawsuit cannot be filed against the employer (except under extraordinary circumstances).

A personal injury lawsuit occurs when a person is injured due to negligence of a third party e.g. the driver of a car, the owner of property, a doctor, etc. While both personal injury and workers compensation cases have the payment of fair and reasonable compensation as their goals, the type of proof required and the type and amount of compensation that is available, is far different in these two cases.

In a workers compensation case, negligence does not have to be proven. This means that an injured worker does not have to prove that his accident happened as result of somebody’s wrongdoing. All that needs to be proven is that the injury occurred during the course of your employment, that is, it happened on the job, and that the injury arose out of your employment, meaning that it has some connection with work. Chicago attorney Mitchell Lipkin outlines the basic process of a workers comp claim:

Here are a few examples.

  • A construction worker is lifting a heavy object as a part of his work and suddenly feels a pop in his lower back and needs to be off work while obtaining medical treatment, this employee will have a valid workers compensation claim. Notice that the employer did nothing wrong in causing this injury.
  • An office worker trips and falls on a box while on her way to her company’s break room, fracturing her arm and requiring surgery. Under the law, she would be entitled to workers compensation benefits. Again, the focus is not on her company’s negligence, which might not exist, but only on the fact that she was injured while on her company’s premises and that her injury was work connected (i.e. falling over the box).
  • A driver injured in a car accident pursuing a personal injury lawsuit must first demonstrate that somebody else was responsible for the accident. This could be, of course, a person running a red light, or striking the back of your car while you are stopped, or even a mechanic that has improperly made repairs following which you get into an accident. The point is, without demonstrating negligence on the part of some third party, the injured person is not entitled to receive any benefits, no matter how serious his/her accident may be.

So far, we have learned that it is far easier for an injured worker to win a workers compensation case than it is for someone to win a personal injury case.

Next, let's look at the compensation, which is available to each type of accident.  Legally, a person injured on the job is entitled to the following categories of compensation: 2/3 of your average weekly wage (up to a certain maximum limit) for each day that you miss from work due to your accident (assuming more than 10 consecutive days are missed). If less, the first 3 days will not be paid under workers compensation insurance; all of your medical bills for your work related injury must be paid; and lastly, and in virtually all cases, you will be entitled to some amount of money for permanent disability. Permanent here does not mean that a person is unable to return to work or perform ordinary activities of daily living, but rather an assumption made by the law that certain types of injuries and certain types of medical treatment result in residual permanent disability to which the worker is entitled to some form of compensation. This last category of permanent disability is capped by law at 60% of your average weekly wage up to certain maximal levels. Compensation for pain and suffering is not included under the law of workers compensation.

In a personal injury case on the other hand, there are no caps on compensation under current Illinois law (here we are distinguishing an ordinary personal injury case from a medical malpractice case or products liability case for which caps may be imposed). The categories of damage available to someone injured in a personal injury case include lost wages, the amount of one's medical bills, pain and suffering and disability. Moreover, to the extent that your injuries are permanent in nature, you can seek compensation for each applicable category for the rest of your life.

So, for example, if you are a 35 year old person who lost a leg in a brutal car accident caused by a third party’s negligence, you would be entitled to compensation for disability, among other things for the rest of your life. Given that a 35 year old’s life expectancy is approximately 45 years, you can see where the amount of money sought in future damages can be extraordinarily high. Whenever we read about an accident case result where a victim has been awarded or settled his/her case for millions of dollars, you know that this is a personal injury and not a workers compensation claim. The basic “trade-off" in a workers compensation versus personal injury accident case is the ease of winning in the former versus the far more significant compensation in the latter - assuming you can prove negligence.