If you’re hurt at work, it’s important to understand the difference between workers’ comp vs. personal injury. In South Carolina, an injured worker may have a workers’ comp or personal injury claim. They may have both types of claims.
It’s important to understand how workers’ comp and personal injury law interact in South Carolina. Bobby Jones Law explains what you need to know.
Workers’ Comp vs. Personal Injury Explained
Personal injury is a compensation system for anyone who is hurt by the negligent actions of others (or reckless or intentional acts). You don’t have to have a job or an employer-employee relationship to bring a personal injury claim. Rather, the standing to sue is based on a duty of care that is owed to others in society and large and a lack of care that results in injury.
Workers’ comp is a separate system and body of law that applies to on-the-job injuries. The law creates a different standard for who can get benefits and relief, what benefits are paid, and the claim system. The South Carolina Workers’ Compensation Commission was founded in 1935 to create a fast and equitable system for handling workplace injuries. The system is an alternative to the personal injury claim system.
The workers’ compensation system overrides the personal injury system for most on-the-job injuries when there is no third-party fault.
Personal Injury vs. Workers’ Compensation: Comparison Chart
| Personal Injury | Workers’ Comp | |
| The law | Negligence, recklessness, or intentional conduct resulting in injury | Injured in the scope and course of employment |
| Legal citation | S.C. Code § 15-38-15; case law explaining the elements of negligence (example: Olsen v. Faculty House of Carolina, Inc.) | S.C. Code Title 42 – Workers’ Compensation |
| Is proving negligence required? | Yes | No |
| Comparative negligence? | Yes | No |
| Who is the claim against? | Anyone with negligence or other legal fault, multiple defendants, possible | The employer, exclusively |
| Can you claim against the employer? | No | Yes |
| Compensation/benefits | Monetary compensation | Medical care, rehabilitation, replacement income, disability compensation |
| Amount paid | Based on losses of the defendant, caps apply in some types of claims | Medical care at no cost, replacement income based on pre-injury wages, disability based on income and rating |
| Pain and suffering paid? | Yes | No |
| Punitive damages possible? | Yes | No |
| Who may bring a claim? | Any injured party | Employees |
| How to start the case | Filing a summons and complaint in court | Notifying the employer of the injury and filing Form 50 or Form 52, Employee’s Notice of Claim |
| Legal process | Court, exclusively | Administrative hearings, then court |
| Right to legal representation? | Yes | Yes |
Key Differences in Workers’ Comp and Personal Injury Cases
Workers’ comp and personal injury are different things. What you need to know as an injured worker is that there are multiple ways that you may claim compensation if you’re hurt at work.
In all cases, the first thing you should do is seek appropriate medical attention. Then, you should report the injury to your employer.
Even if you aren’t sure if you’ll be claiming workers’ compensation, be sure that they know about your injury because a delay in reporting the injury can complicate your case.
Proving fault
One key difference between workers’ comp and personal injury is what’s necessary to prove a case. In both types of claims, the person seeking relief must prove their case. What they must prove is different in the two types of cases.
In personal injury claims, the victim must prove that the defendant has legal liability. Legal fault is based on negligence at a minimum, and maybe conduct that is more serious. The victim must prove the existence of duty of care of the defendant. They must establish that the defendant acted unreasonably based on how an ordinary person would act.
In workers’ comp cases, proving negligence isn’t required. The victim must show only that they were hurt on the job. They don’t have to prove whose fault it is. They may need to respond to allegations of intentional conduct or intoxication. However, in general, workers’ compensation is not fault-based. The purpose of the system is to provide injured workers with timely relief without having to prove a case where the evidence can be largely in the hands of the employer.
Damages and benefits
Another important difference in the two types of claims is what damages, benefits, and compensation are payable.
Generally, a personal injury claim may be more likely to result in higher total compensation because of the availability of pain and suffering. However, there are other benefits to a workers’ compensation claim, like paid medical care to the point of maximum medical improvement.
A personal injury claim pays damages — the cost of medical bills, whereas a workers’ comp claim provides the medical care itself (although the case may be settled for a cash award). Personal injury pays the amount of lost income — in theory, the total amount.
Workers’ comp pays a percentage of average weekly pay until the person can return to work and restore their earnings.
Pain and suffering is payable in personal injury claims only. Disability and disfigurement is payable in both types of claims. In workers’ compensation, disability pay is tied to your weekly wage, with the extent of the disability factoring in, too. In personal injury compensation, disability, and disfigurement is not directly tied to how much you earn, although disability may be relevant to a determination of lost career potential.
Legal process and representation
There are differences in the legal process for workers’ comp and personal injury. Personal injury cases start when you file a summons and complaint in court. In workers’ comp, the first thing you do is tell your employer about the injury. Then, you take your case through an administrative process and go to court if necessary.
You may reach a settlement in either type of case. You may have an attorney represent you in both types of cases.
Call a Greenville Attorney for Personal Injury and Workers’ Compensation Cases
Robert “Bobby” Jones of Bobby Jones Law is an attorney for both injured employees, individuals, and their families. Contact us now for help with your personal injury or workers’ comp case. You can reach out online or call 864-362-2640 today.
