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What Is the Difference Between Personal Injury and Workers Compensation?

While workers’ compensation benefits and personal injury claims can cover the costs of medical treatment and lost wages, there are key distinctions between the two.

Some main differences between personal injury claims and worker’s compensation claims include:

  • Determining Fault: Someone needs to be liable or at fault in order to file a personal injury lawsuit. In most cases, this will involve some form of negligence.

  • Workers’ compensation can cover specific injuries – even if the employee is at fault. As long as the injury was sustained during the course and scope of employment, the injured employee can apply for workers’ compensation benefits.

  • Damages: In a personal injury case, you are entitled to all forms of damages that you have experienced, including pain and suffering.

  • Workers’ compensation does not include pain and suffering, but does include scarring and disfigurement.

  • Right to Sue: You cannot file a lawsuit against an employer for a work injury. In most cases, employees forfeit their right to sue an employer for work injuries, but they are entitled to workers’ compensation benefits.

Are Employers Required to Carry Workers’ Compensation Insurance?

Yes, in Delaware all (with some limited exceptions) businesses must carry Workers’ Compensation Insurance.

What Damages Can Be Recovered?

The distinct difference between workers’ compensation and personal injury is the coverage and liability.

Personal injury claims include all damages – including pain and suffering. Other damages may include:

  • Lost wages and earnings in excess of Delaware PIP benefits

  • Lost future wages and earnings

  • Medical bills in excess of Delaware PIP benefits

  • Future medical expenses pain and suffering

  • Loss of enjoyment of life.

Under the Delaware Workers’ Compensation Act, the employee may be entitled to the following rights:

  • Disability Benefits

  • Your wage rights under the workers’ compensation laws in Delaware are based on your average weekly wage (AWW).

  • This benefit is designed to replace your wages when you can’t work for 3 or more days due to your work injury. This benefit is also available on a partial basis (for temporary partial disability) if your doctor restricts your work hours or work duties, which results in you earning lower wages.

  • Medical Benefits

  • If you are injured in the course and scope of your employment, you are entitled to medical benefits for the rest of your life as long as the treatment is reasonable, necessary and related to the work injury, and your Delaware caregiver is also certified under the Workers’ Compensation Statute. (If you see an out-of-state doctor, they do not have to be certified under the Workers’ Compensation Statute.) A list of certified providers can be found on the Department of Labor’s website.

  • The worker’s compensation insurance company must pay at least one medical bill every 5 years in order to keep this benefit active.

  • Mileage

  • You are entitled to mileage reimbursement of forty cents (.40) per mile, roundtrip for your doctor’s appointments.

  • Scarring/ Disfigurement

  • If you were unfortunate enough to have suffered a scar or other physical disfigurement as a result of your work injury, you are generally entitled to compensation. Any scar and/or disfigurement that is visible when properly clothed can be awarded a monetary settlement. The amount of the settlement is determined by the location, size and visibility of the scar. Also, if you walk with a limp as a result of your work injury, you may also qualify for this benefit.

  • Permanent Partial Impairment

  • If your work injury is permanent, you may be entitled to a lump sum payment. The amount of this recovery is based on a formula which takes into account the part of your body that was injured, your percentage of impairment and your workers’ compensation rate of pay

If you have been injured and have questions regarding your case, the lawyers at Kimmel, Carter, Roman, Peltz & O’Neill are here to help. For a free review of your case, call 302-565-6100.


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