A single incident can often result in a variety of claims andavailable benefits. Consider a car accident while a person is “atwork.” This could involve driving to a sales meeting; aconstruction or landscape laborer travelling between sites; apolice officer pursuing a suspect; a food delivery person — thelist of possibilities is endless.

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This single accident could lead attorneys to believe they cangather the medical records, fill out forms, use boilerplatepleadings and pursue each of the various claims this singleaccident could create, such as the following:

• A negligence claim against other driver
• Workers Compensation
• FMLA
• Short- and long-term disability
• For officers on duty, a Heart & Lung Act claim
• For prolonged disability, Social Security benefits
• For complications from treatment, a medical malpracticeclaim
• For defects in one of the cars causing the accident, a productsliability claim

Few law firms, let alone sole practitioners, are equipped tocapably handle all aspects involved in what may seem at firstglance to be one, simple claim, not as a result of the lawyer'sparticular skill or ability, but rather because each type ofpractice is so very different in its nature, procedures, schedulingissues and just plain “style” of practice. In order to maximize thevalue of each separate component of the claim, as well as toprotect the client's best interest, lawyers need to be wary aboutwhat they don't know. Clint Eastwood probably put it best: “A man'sgot to know his limitations.” (Magnum Force, 1973).

Origin

Personal Injury (PI) law originated in common law trespass.Workers' Compensation (WC) is purely statutory. When rights andduties are created by statute, the legislature giveth, and thelegislature may taketh away. For example, Pennsylvania's Workers'Compensation Act was called “The Grand Bargain” when created in1915. The primary element given was the relaxed burden of proof(course of employment vs. negligence); while the benefit(s) takenaway involve the types og compensation available (for instance,pain and suffering).

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Burden of proof

A personal injury claim requires proof of four elements: duty,breach, proximate cause and damages. The first two are typicallysubsumed by the term “negligence.” The injured person (plaintiff)must prove that the defendant owed a duty to act (or not act), as areasonable person would in similar circumstances. The failure toact reasonably is the breach of that duty. The plaintiff must havesuffered some damage or injury, which was caused by the defendant's“negligence.” If any of the elements can't be proven withsufficient evidence, there will be no award.

The Pennsylvania Workers' Compensation Act (which is similar tomost states) essentially eliminates elements one and two.Negligence is not necessary to be entitled to workers' compensationbenefits; and no “extra” benefits are available even when it can beproven. Likewise, negligence on the part of the injured worker(claimant) is not a defense to a WC claim. Negligence isirrelevant. Instead, the claimant must prove the injury occurredwhile in the course of employment, and is related to it. Theadditional element of disability determines the availability ofwage loss benefits, but not the compensability of the claim.

Related: When is a rejected proof of loss also a denial ofthe claim?

Benefits available and duration

In personal injury matters, there is one single award orsettlement to cover all damages and injuries suffered. Elements ofdamage include economic losses (for medical bills or lost income),and the ubiquitous pain and suffering. Other components may includeloss of enjoyment of life, loss of consortium and even punitivedamages. The settlement or award may include future injuries andlosses, if supported by sufficient evidence. Once settled by theparties, or a judgment is entered by the court, the plaintiff can'tseek additional benefits for injuries lasting longer than expectedor consequences unforeseen at the time of settlement or trial.

Workers' compensation provides a hybrid of benefits. As ageneral rule, the claimant is entitled to payment of medical billsfor treatment that is reasonable, necessary and related to the workinjury, and payment for lost wages (based on formulas in the act).Wage loss and medical benefits may be payable on an ongoing basis,as long as the claimant remains disabled (compared to the one-timepayment structure of negligence cases). Benefits can also be paidas a one-time settlement, discussed below.

“Total disability” can, conceivably, last for life. “Partialdisability,” that is, the situation in which the claimant can work,but at restricted duties and less pay, may be available for up to500 weeks.

Additional benefits, commonly called “specific loss”, may existfor certain disfigurements, amputation or loss of use of a bodypart. Penalties may be awarded for a defendant's violation of theterms of the law — subject to a judge's discretion. There is noaward of pain and suffering or loss of enjoyment of life, forinstance. Furthermore, insurance companies have many tacticsavailable to challenge a claimant's right to benefits (for example,the defense doctor stating the claimant is recovered, vocationalrehabilitation showing work is available and many otherstrategies).

Settlements

A personal injury claim may be settled out of court by formsprepared and signed by the parties, called a release.

Workers compensation settlements, called a compromise andrelease must be approved by a workers' compensation judge.“Out-of-court” settlements are invalid. The parties can settle someor all benefits available. For example, the parties may settle theright to future wage loss benefits, but keep medical benefits“open,” to be paid by the insurance company. No judge can forceeither side to settle. The amount of the settlement, and everycondition must be agreed upon, or there is no deal.

Related: Workers' compensation renewal rates sufferedthrough most of 2017

Procedures

A negligence lawsuit begins when plaintiff files a complaintwith the court. The court will typically issue a trial or casemanagement schedule. Discovery is managed by the parties and mustbe completed within the schedule. If not resolved by agreement (ora dispositive order), the court will hold a single trial, at whichall evidence is presented, and counsel may make opening and closingarguments. At the conclusion, the judge or jury will render averdict or award, determining the outcome.

Workers compensation proceedings begin with a petition, filed byeither party, with the Bureau of Workers' Compensation. Theclaimant may be seeking benefits; or the insurance carrier may betrying to stop or reduce benefits. Each judge sets rules anddeadlines (within bureau guidelines). There are no juries.

Knowing each judge's rules is extremely important. A typicalcase may involve 2–5 hearings, over the course of about 6–8 months.At the final hearing, all evidence is identified and certified, andthen uploaded to the state's computer system. The judge orders eachattorney to write a brief, usually within 30–60 days. After thejudge has reviewed all evidence and briefs, a written decision willbe circulated.

Unlike the “immediate award” in personal injury claims, it cantake three months (or more) after the final hearing to receive adecision. Additionally, unlike the single trial procedure in PIclaims, WC may involve serial petitions. So long as the claimant isreceiving benefits, multiple petitions can be filed (by eitherside), arguing a number of theories to stop, reduce or evenincrease the benefits being paid. There is no “permanent”award.

Related: Massage therapy — is it a covered workers' compmedical treatment or not?

Attorney fees & expenses

Counsel fees in personal Injury cases are determined by thecontract between the client and lawyer, typically a percentage ofthe amount recovered by settlement or trial. The costs oflitigation are also deducted from the amount recovered. Adistribution summary is provided to the plaintiff, explaining theallocation of all funds, including fees, costs, outstanding medicalbills or other liens/subrogation that may exist against theplaintiff's recovery.

Counsel fees in workers compensation are regulated by the WC Actat 20% of the benefits obtained or protected — and must beapproved by a judge before they can be paid. They may be paid fromthe weekly wage loss benefits, settlement proceeds, or both. In therare event that a judge finds the defendant has “unreasonablycontested” a matter, the judge may order the defendant to pay theclaimant's attorney fee. Costs of litigation are reimbursed by theinsurance company — if the claimant wins. If the claimant loses,those costs are borne by either counsel or claimant — subject totheir retainer agreement. Common practice is for counsel to incurand risk the costs.

Though not impacting the allowable fee, attorneys meeting strictrequirements, and passing a Bar Association test may be certifiedas a Workers Compensation Specialist — a designation available infew areas of law.

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Subrogation

A person injured in a work-related accident, with a relatedpersonal injury claim can't “double-dip.” The workers' compensationinsurance carrier has an absolute right to subrogation, to recoverall the benefits paid to the claimant, to the extent recovered fromthe negligence claim. With knowledge and experience, a reducedpayment can be negotiated, but the timing, strategy and ethics mustbe carefully considered. When the injured person is represented byseparate law firms for each case or claim, it becomes moredifficult to coordinate each attorney's actions to ensure the bestinterest of the client vs. either attorney getting the best dealfor their specific part of the claim — but it may harm anotherelement of the claim.

Subrogation also encompasses medical bills paid by a privateinsurance carrier or Medicare/Medicaid, when the bills should havebeen paid by workers' compensation or first-party benefits underthe motor vehicle policy. This right is not absolute, and it can bewaived by lack of due diligence.

Attorneys and insurance professionals need to recognize whatthey don't know — and, even with the best of intentions, should notseek to represent a client, either plaintiff or defendant — if notexperienced, and equipped to really help them. Moreover, whenexperienced and equipped to represent only one aspect of a client'smultiple claims, coordinate your efforts with other counsel toensure the client's best interest is fully served.

Related: Get workers moving to reduce workplaceinjuries

Mark R. Schmidt is a partner of Schmidt, Kirifides& Rassias, he has practiced workers'compensation exclusively since 1990, and is a certifiedworkers' compensation specialist, as authorized by thePennsylvania Supreme Court. George G. Rassiasjoined the law firm in 2008. He currently practices civillitigation in Pennsylvania.