After your work injury you may experience weeks, months, and even years of pain. This pain comes in many forms – pain from the injury itself, pain from the treatment you receive for the injury, including surgery and therapy, and pain from any permanent disfigurement or scarring.
You may also experience suffering after a work injury. This suffering refers to the frustration, anger, sadness, humiliation, and decreased enjoyment of life you now have because of your work accident and the problems it has caused.
Many injured employees, regardless of whether they’ve been through workers compensation litigation or a personal injury lawsuit before, have heard of compensation for pain and suffering in the legal system. They know and understand that you may claim pain and suffering as one of the damages that you have suffered when filing a personal injury lawsuit in civil court. So it makes sense that one of the most common questions I receive as a Virginia Beach workers compensation lawyer is, “Can I claim pain and suffering under workers’ comp?”
Unfortunately the answer is no. Under Virginia workers compensation you cannot receive compensation for “pain and suffering.” No matter how much pain your injury caused or how negligent your employer was in causing your workplace injury, you cannot claim pain and suffering under workers’ comp.
Why can’t you receive pain and suffering under Virginia workers’ comp? Because of the trade-off agreed to between employers and employees when the workers compensation system was established.
Under workers’ comp you do not have to prove that your employer’s negligence caused your work injuries. In fact, you can be negligent and still receive wage loss benefits and lifetime medical treatment for your work-related injuries. This makes it easier to receive workers’ comp benefits.
In exchange for giving up these defenses, employers wanted something. What they got was a workers compensation system that limited the types of benefits and payments available. Pain and suffering are excluded from the system.
If your work injuries cause you depression, anxiety, or PTSD, however, you may be able to receive workers compensation for these conditions as compensable consequences of this initial accident. For example, an employee who injures his back and is diagnosed with depression because of the work accident may recover benefits for depression in Virginia. This is not considered compensation for pain and suffering. Instead it is considered a change in condition application.
Further, an injured employee may be able to recover pain and suffering if he or she has a third-party civil lawsuit arising out of the work accident. For example, if a third party caused your accident at work then you may be able to bring a workers compensation claim against your employer and a personal injury lawsuit against the third party at the same time. You may claim pain and suffering in the third-party lawsuit.
A special thanks to our authors at Jenkins Block & Associates for their insight into Workers Compensation and Personal Injury Law.