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After settling Work Comp claim, can you also get Pain and Suffering from the WC carrier's insurance company

North Wales, PA |

I settled with WC carrier, they put a claim in to Erie insurance for 15,000 which covers everything they paid me and the costs associated with handling my claim. Erie wants to close the case and has called me on the phone to see if I wanted to make a claim and/or settle. statute of limitations runs out May 2013 and I had some serious P&S and will probably forever as I never had surgery. Its my back and the MRI revealed a sprain with fluid in the L4 vertebrae. If they are calling me to settle, should I settle or will I have to pay back the WC carrier?

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Attorney answers 8


There is no P&S on a WC claim. Get a lawyer to help you negotiate the value of your claim or you will be leaving money on the table!


You are confusing the the 2 carriers. It sounds like someone else caused your accident and they were insured by Erie. You may have a valid pain and suffering claim. You need to hire a lawyer to protect your interests.


I am not sure that I fully understand your question but I will try to answer it two ways. First of all. there is no pain and suffering benefit/award in WC. Your employer is responsible for paying your wage loss, medical expenses and potentially specific loss and death benefits. When you settle the WC claim they are paying a lump sum in exchange for you giving up your right to those benfits.
However, you can bring a claim for pain and suffering against a negligent third party (someone other than your employer). In that case part of your damages that you would be entitled to would be the money that workers comp paid you (the wage loss and the medical). That is called subrogation.
Regardless, you absolutely should get a lawyer before you settle any claim. A lawyer will undoubtedly get you more than you will get on your own. I hope that you find this helpful.


Hire an attorney ASAP.

Good luck.

DISCLAIMER: David J. McCormick is licensed to practice law in the State of Wisconsin and this answer is being provided for informational purposes only because the laws of your jurisdiction may differ. This answer based on general legal principles and is not intended for the purpose of providing specific legal advice or opinions. Under no circumstances does this answer constitute the establishment of an attorney-client relationship.


There is no pain and suffering award in Workers Compensation, as all you are entitled to would be loss of wages and payment of your medical bills.

Based upon the facts that you have described and more importantly the "practice area" it appears as if you are mixing up the Workers Compensation Carrier and the motor vehicle carrier. If this is accurate, you would be able to secure "special damages" such as pain and suffering as a result of the third-party cause of action arising out of the motor vehicle accident. Such "special damages" are not available in a Workers Compensation Claim. Further, if you are married your wife may have a "loss of consortium" claim.

Assuming that this work-related injury occurred out of a motor vehicle accident, and there is a liable third-party, it is imperative that you consult with an attorney to discuss your rights arising out of the third-party Motor Vehicle Accident as quickly as possible in order to avoid the Statute of Limitations running out in May, 2013 at which time you would be without any rights if a Complaint or at the very least a Writ of Summons is not filed against the driver of the other vehicle.

What you seem to be describing in your question is the Motor Vehicle Insurance Carriers entitlement to subrogation from the Workers Compensation Carrier. You may also need to discuss this with an experienced Workers Compensation Attorney to ensure that the Subrogation Lien is properly calculated.

Please note that most attorneys who handle both Workers Compensation Claims and Motor Vehicle Accidents do not charge for an initial consultation and will take your case on a Contingent Fee Basis.


Pain and Suffering is not covered under WC, but it is available in Personal Injury on the 3rd Party case. If I understand correctly, the Carrier is trying to recover the expenditures from the 3rd Party. You absolutely need a good Personal Injury Attorney, because it sounds like the 3rd Party wants to give you money. Regardless of what amount you settle for, how that settlement money is characterized will absolutely determine how much of the settlement money you get to keep.

We give free general concepts to be helpful, but you should give ALL your facts to a licensed Attorney in your state before you RELY upon any legal advice.


Contact a lawyer. As the injured party you have a right to submit a claim and settle your claim with the third party insurance carrier. However, under the terms of your workers' compensation (“WC”) settlement, and the WC Act, the carrier likely has retained its rights to enforce a claim for subrogation, which is their right to be paid back, per the terms of the Act. To protect your rights have a lawsuit filed against the negligent defendant before the statute of limitations expires. A lawyer will work towards maximizing your recovery from the negligent party, and minimizing the reimbursement paid to the WC carrier. For example, in 2012, the Pennsylvania Supreme Court in Frazier v. WCAB (Bayada Nurses, Inc.), 6 A.3d 1288 (Pa. 2012), decided that the WC carrier did not have the right to be reimbursed where a Commonwealth actor (a SEPTA driver) was at fault in causing injury, even though the plaintiff received benefits under the WC Act. An attorney will be in the best position to evaluate your claim.

Legal disclaimer: The statement above is general information and not intended to be a legal opinion to be followed. The person requesting information and all others reading the answer should retain an attorney before making a decision. The information provided does not create an attorney-client relationship. Contact our office to obtain specific legal advice at (215) 702-2708 for Pennsylvania or New Jersey matters.


Unfortunately, pain and suffering damages are not an element of a workers' compensation award. I would contact a workers' compensation attorney right away and not attempt to negotiate with the carrier unrepresented.

I am an attorney, but do not represent you. This communication is not intended as legal advice, and no attorney client relationship results. Please consult your own attorney for legal advice.

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