Please take the following as a general guide but not as legal advice. I suggest that if you hire an attorney you do not hire a general practitioner for this type of claim. There are many pitfalls that could severely limit your potential recovery or cause a prolonged delay in your settlement if your lawyer does not know how to navigate this. The purpose of the following is merely to illustrate the pros and cons of making a claim through either approach and should not be construed as legal advice.
Under such a scenario, you will be able to make both a worker’s compensation and a personal injury claim. If you file a claim for both, you must be incredibly careful which claim is settled first to avoid owing money to your employer for the medical expenses they paid. The answer to which, if either, claim you make depends on both the likely permanency of your injury, how much work you will miss, and if you need to be compensated for lost work immediately. Worker’s compensation provides immediate payment for missed time from work whereas personal injury cases require you to wait months or years for your case to settle before obtaining lost wages compensation. If you need money to pay your bills, you should utilize worker’s compensation benefits.
The first question that should be asked is if your injuries are likely to cause you to miss work. The answer to this may take some time to determine, so this decision should not be made quickly.
If you are confident at the outset that you do not believe your injuries will be long lasting or will require you to miss work, you should consider making a car accident claim only. If the injury is one that will resolve itself through passive treatment over the course of 3-4 month, you will likely go to the emergency room and then seek chiropractic or physical therapy treatment. You will not need to deal with worker’s compensation at all in this scenario. General soft tissue injury car accident claims are generally worth more as personal injury claims than worker’s compensation claims.
Most of the time you will not be so fortunate to know immediately if your injuries are permanent. If your injuries are enough for you to miss work, your best bet is to notify your employer of your injury. They will at that point be required to provide you with medical treatment. In Missouri, your employer has the right to choose where you receive medical treatment. You will treat with their doctors according to the schedule that they provide you.
An important reason for using worker’s compensation coverage is to utilize coverage for missed time from work. Your employer must accommodate you with "light duty" work if they have it available. If you are provided light duty work, you will be paid your normal rate.
If you must miss work, as decided by the doctor, you will be awarded Temporary Total Disability (TTD) for all time you miss after the first four (4) consecutive days. You will not be entitled to any TTD benefits if you only miss three days of work. Your TTD rate is 2/3 of your average weekly wage.
You must treat with workers' compensation doctors until you reach a point of maximum medical improvement (MMI). If you treat with your own doctors, you must pay for this yourself or utilize treatment through a personal injury lien. Your employer is not obligated to pay for treatment that you received on your own.
When you reach MMI, the doctors will give you a disability rating that is supposed to represent the percentage that your permanent injury is partially disabling. The rating is usually the most highly disputed area of worker’s compensation cases. You should consult with an attorney at this stage as you may have to do one of several things to increase the amount you are being offered.
It is a not so well-hidden secret that insurance companies employ doctors that tend to find individuals less injured than they may be. You may be best off hiring your own doctor to obtain what is called an Independent Medical Exam (IME). This evaluation can cost around $1,000 and will add time to your case. However, it is the only way that you can argue for a higher benefit if you take your cases to trial. You must add your own expert to provide a different medical opinion than the worker's compensation doctor.
If you have both a bodily injury and worker’s compensation claim, your attorney MUST resolve the worker’s compensation claim first! This is incredibly important as their failure to do so could potentially result in a money judgment against you down the road.
When your employer provides you with medical treatment, they are responsible for not only choosing where to send you, but for paying for that treatment. Your employer has a right of reimbursement for any amounts paid on your claim in the event you receive a settlement with another party. Your attorney must understand this and correctly guide you through this process.
Generally, the worker’s compensation case should be settled first so that you know the exact amount of reimbursement workers compensation may have. This reimbursement right is protected by a lien against your personal injury claim. Once that figure is known, you can then settle the personal injury case. It is important that the lien is paid off by the third-party settlement. If it is not paid, your employer can pursue the client individually for the full value of their lien! An attorney that allows this to happen is likely headed toward a malpractice claim. An attorney should never allow this to happen without accommodating funds to pay off the employer's lien.
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