Each and every one of our clients has endured pain and suffering due to their Indiana worker’s compensation case. So, it stands to reason that many of our clients wonder if they can recover that against their employer? It’s a fair question, because work injuries do cause a lot of pain and suffering. Unfortunately, generally, in an Indiana worker’s compensation case, there is no real mechanism for recovery for pain and suffering against your employer and the worker’s compensation insurance company. Read on to learn more.
The Indiana Worker’s Compensation Act Guarantees Many Types of Benefits, But Prohibits Others, Including Pain and Suffering
Indiana’s Worker’s Compensation Act was created to provide both employers and employees a clear understanding of what an employer’s obligation is to care for a worker who is injured on the job. There are trade-offs there. The benefit the employee receives is that medical care for an injury that indisputably occurred on the job is the obligation of the employer to pay. The employer must pay for lost work while recovering – that’s called Temporary Total Disability (TTD). The employer must pay for any Permanent Partial Impairment (PPI) or Permanent Total Disability (PTD) incurred by the employee. BUT, the tradeoff is you are not allowed to sue your employer the same way you can sue a negligent driver who crashed into your car. This is the case even if your injury was caused entirely by an unsafe working environment created by your employer! Not being able to sue means no recovery for pain and suffering for injured Indiana workers.
Injured Workers May Be Able to Recover Damages For a Certain Type of “Pain and Suffering”
What we’re about to explain is not an actual award to an injured worker for pain and suffering, but there is one circumstance we can think of where the misbehavior of the insurance company in a worker’s comp case can result in an award for something called lack of diligence. This award may arise if delays on the part of the insurance company cause you to endure unnecessary pain and suffering, or worse, a permanent injury that could have been fixed with prompt action! Suppose you sustain a lumbar spine injury with severe pain and numbness shooting down your legs. The doctor the worker’s comp company chooses says you need immediate surgery to correct the problem, or else it could be permanent. Then, imagine the worker’s comp company takes its time “approving” the recommendation, and by the time they get around to approving, it’s too late. The surgery didn’t happen in time, and the numbness is now permanent. In such a situation, we would fight for an award against the insurance company for lack of diligence, which can carry hefty penalties plus an award of attorney’s fees against the worker’s compensation carrier. In Indiana worker’s compensation cases, that’s the closest we come to an award for pain and suffering.
You Are Entitled to Pain and Suffering Damages if Your Work Injury Was Caused by a Third Party
While an employer or worker’s compensation insurance company may not be responsible for pain and suffering, if your injury was on the job, but caused by the negligence of someone else outside of the employment, then YES, pain and suffering is available. The most common example we see, by far, is delivery drivers who suffer a collision while out on the road. Meaning, even though the injury was on the job, since someone who doesn’t work for you caused the injury, they can be liable just like anyone else for your injuries, including pain and suffering. So, in that situation, you may have BOTH a worker’s comp case and a personal injury case (what we frequently call a third party case).
A note of caution: It’s not always easy to tell if you have a claim against a third party in a work injury. That’s why it’s essential to discuss your injury with a skilled worker’s comp attorney such as Charles Hewins. Plus, if you do have both types of cases, it is very easy to make a mistake in how to handle them, which could potentially shut you out of available benefits forever if you make the wrong move. We would be happy to discuss your situation with you. The initial consultation for worker’s comp cases in Indiana is always free!
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