Can I Sue for Pain & Suffering During or Emotional Distress After Filing for Workers’ Comp?

In most cases, you cannot sue your employer either during or after filing for workers’ compensation benefits. It is also difficult to sue the insurance company as much case law does not allow it.

That is fine in many cases because the advantage of the workers’ compensation system is that you don’t have to prove that your employer was at fault to win.

This means that you cannot sue for pain and suffering damages under workers’ compensation. To sue for pain and suffering or emotional stress, you have to file a personal injury lawsuit and prove that your employer was at fault.

The bottom line is that most types of workplace injury claims can only be resolved through the workers’ comp system, while very few claims can be resolved through a personal injury lawsuit.

If you filed the wrong type of claim with workers’ comp, it would be dismissed, and you can probably file a personal injury lawsuit, but only in rare cases will you have the option to choose which system to use to resolve your claim.

If you’re unsure about your options or just want professional legal advice, don’t hesitate to get in contact with a reputable workers’ compensation attorney now. Krasno, Krasno & Onwudinjo does offer free case evaluations if you contact us through our site or start a live chat now.

In the meantime, we’ll do our best to answer all relevant questions here.

Can You Sue For Pain and Suffering Damages?

Pain and suffering damages are a non-economic component of a personal injury claim in workers’ compensation cases.

Suppose, for example, that you suffered a slip and fall accident. Your medical treatment amounts to $20,000 and you were out of work for a month. In a personal injury lawsuit you could claim $20,000; plus the amount of wages you lost by missing work for a month; plus other incidental expenses such as child care while you were in the hospital. These are your economic damages.

In addition to claiming compensation for economic damages, you could also claim compensation for non-economic damages as an injured worker.

Pain and suffering damages are one form of non-economic damages, and you can only sue for pain and suffering if you suffer a physical injury. They can be broken down into physical pain and emotional distress.

Examples of conditions that qualify as pain and suffering include (but are not necessarily limited to):

  • The physical pain of a broken leg
  • Aches and pains
  • Panic attacks caused by withdrawal from pain medication
  • Weakness and listlessness
  • Emotional distress
  • Other conditions arising from a physical injury that involves suffering

The Value of a Pain and Suffering Workers’ Comp Claim

Your pain is worth something. But how much? How do you measure pain in dollars and cents? To do so, you would have to prove your pain and suffering through physical evidence, medical records, and expert medical testimony.

The trade-off is that the monetary value of your pain and suffering claim is hard to estimate since results vary dramatically from claim to claim. However, there are two common ways of measuring pain and suffering damages; a per-day rate (90 days X $200 per day, for example) or a multiplier of your economic damages (three times the amount of your economic damages).

Pennsylvania personal injury law places no formal limit on the amount of money you can receive for pain and suffering damages; unless the defendant is the state or local government, in which case strict (but relatively high) limits apply.

Can I Sue My Employer for Emotional Distress?

Under Pennsylvania personal injury law, emotional distress damages are one kind of pain and suffering damages, but not the only kind.

Emotional distress damages can be claimed for the following conditions if they arise from a physical injury:

  • PTSD
  • Emotional trauma or depression
  • A permanent fear of dogs resulting from a dog attack
  • Temporary or permanent limitations on daily activities such as walking; and
  • Embarrassment or humiliation (resulting from severe facial scarring, for instance)
  • Other maladies

The same restrictive rules apply to emotional distress claims against your employer that apply to pain and suffering claims against your employer. Injured employees cannot claim emotional distress damages except by filing an ordinary personal injury claim, and you cannot file a personal injury claim for a work-related injury unless an exception applies (see below).

The Exceptions: When You Can Sue Your Employer for Emotional Distress or Pain and Suffering

If one of the following exceptions applies, you can sue your employer for emotional distress or pain and suffering in a personal injury lawsuit:

  • When your employer injures you intentionally, your employer must have acted with the specific intention of harming you. Otherwise, your employer’s act would be better characterized as negligent or reckless rather than intentional, and you will have to file under workers’ compensation laws.
  • Your injury was caused by your intoxication (alcohol or drugs). As long as the accident was mostly your employer’s fault, you can still win partial dames under the Pennsylvania comparative fault system, and these damages might include pain and suffering damages.
  • If your injury was caused by an illegal act.
  • If your employer did not carry workers’ compensation insurance or carried insufficient insurance to cover your claim. Failing to carry sufficient workers’ comp insurance is against the law in Pennsylvania, and the result would be that you could file a personal injury lawsuit against your employer for your injury.

Just to reiterate, in the foregoing cases, filing a personal injury lawsuit is your only option. You cannot split up your claim by filing a workers’ comp claim for lost wages and medical expenses plus a personal injury lawsuit for pain and suffering.

Please note that you cannot file a personal injury lawsuit against your employer for the sole reason that your workers’ compensation claim was denied. An exception to workers’ comp coverage must apply for you to file a personal injury lawsuit.

If your workers’ comp claim is denied, you should file an appeal within the workers’ compensation system rather than go to court.

Suing for Pain and Suffering: Third-Party Defendants

Filing a claim against your employer might not be your only option to recover compensation for a work-related injury. In the following cases, you might be able to file a personal injury lawsuit against someone other than your employer:

  • If you were injured by a defective product or component, you might be able to sue the product or component manufacturer for pain and suffering. You might even be able to sue the wholesaler or retailer.
  • If you were injured by a toxic substance, you might be able to bring a lawsuit against the manufacturer of the substance.
  • If someone other than your employer or one of your employer’s on-the-job employees caused your injury, you might be able to file a personal injury lawsuit against that party.

In these cases, your claim might include a request for pain and suffering or emotional distress damages.

Wrongful Termination

If you were fired in retaliation for filing a workers’ comp claim, you now have a second claim for wrongful termination. You can file that claim in court and potentially receive emotional distress damages as a part of your compensation (in addition to lost wages, etc.).

Hypothetical Examples of Workers’ Comp Lawsuits

If you are confused with all of these rules and exceptions, consider these hypothetical examples to help illustrate your options:

Can I sue the Pennsylvania state government for an intentional workplace injury?

Suppose you work for the Pennsylvania state government, and your supervisor intentionally injures you on the job. You could maintain a personal injury lawsuit against the Pennsylvania state government, and you could perhaps win damages for pain and suffering or emotional distress. Your total damages would be limited to $250,000, however, because your compensation would have to come out of Pennsylvania taxpayers’ money.

Can I sue the owner of my worksite if it is not my employer?

Suppose you were injured in an on-the-job slip and fall accident at a construction site. You discover that the accident was caused because the owner of the property (not your employer) failed to maintain safe premises. You could perhaps win a personal injury lawsuit and collect pain and suffering and emotional distress damages.

Can I sue workers’ comp for pain and suffering if my employer doesn’t carry workers’ comp insurance?

Suppose you were injured in the job and then discover, to your dismay, that your employer had been breaking the law by failing to maintain a workers’ compensation insurance carrier. Although you cannot sue through the workers’ comp system, you would still be eligible for compensation through a personal injury lawsuit.

In addition to Pennsylvania’s state penalties, your employer will have to deal with the fact that due to its oversight, you can now file a personal injury lawsuit and potentially collect pain and suffering and emotional distress damages.

Contact A Lawyer If You’re Not Sure About A Lawsuit

If you were injured in a work-related accident, or if you are suffering from a work-related injury or aggravated condition, our law firm can help. Contact Krasno, Krasno & Onwudinjo to schedule a free consultation with us to discuss disability benefits and what you’re owed.

You can call us at (844) 243-4823, complete our online contact form, start a live chat on our site, or stop by one of our 12 office locations in Pennsylvania.


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