Hi, I’m Attorney Ben Schwartz and today I’ve got some questions about On-The-Job Car Accidents.
Hi, I’m Attorney Ben Schwartz and today I’ve got some questions about On-The-Job Car Accidents. The questions are courtesy of Sue in Newark, Delaware. I want to take a moment before I start going through the questions that Sue asked us to answer. I want to say that this is a pretty particular area of the law and what I’m going to talk about is how things work in Delaware. A lot of the viewers on our website are in New Jersey, Philadelphia, Pennsylvania, Delaware & Maryland. This really does not apply to Maryland law, but there are going to be similarities between the states. If you have a case that’s on the job car accident and it’s not in Delaware, get a hold of us. We have attorneys in other states and we can get you answers to your questions. Let you know how things work in other states. This is really about Delaware law.
I have 7 questions that I am going to answer about how things work when you have On-The-Job Car Accident in the state of Delaware.
The first question is:
“I was injured in a car accident, but I was working. Do I have a case against the at-fault driver, or do I have a workers’ compensation case”?
The answer is you have both. There are things that are available under both a claim against the at-fault driver and a claim for workers’ compensation benefits. What you need to do is you need to make both claims. You need to get an attorney that is comfortable handling those claims and who does enough of these types of cases to know how to coordinate benefits. Basically, the answer is it’s both.
The second question is:
“Where do lost wages come from in the case of an On-The-Job Car Accident”?
The answer is that under workers’ compensation you’re entitled to lost wages. In workers’ compensation cases are called temporary total disability benefits. In a car accident case, you’re entitled to make a claim for lost wages under the personal injury protection or PIP insurance on the car that you’re occupying. The thing about that is that under workers’ comp you don’t get your full-lost wages. You get two-thirds average weekly wage up to a maximum. The maximum changes every year. Under an auto accident PIP claim, you get eighty percent of your debt lost wages. Oftentimes what we will do is we will make a claim under both. We will make a claim under workers comp for lost wages for total temporary disability under the workers’ comp claim. That will pay two-thirds of the wage. Then we make a claim under the personal injury protection under the auto policy for the difference between two-thirds and 80%.
The third question is:
“What other kinds of compensation can you get if you were injured in an On-The-Job Car Accident”?
There are a number of other types of compensation available. For instance, under both workers’ comp insurance and auto insurance or PIP, you’re entitled to have your medical bills paid. Reasonable and necessary medical expenses resulting from the accident. Other things that are available in the form of benefits under these two types of insurance or compensation were permanent impairment. If you have a partial permanent impairment to your shoulder, let’s say that you had surgery after your on the job car accident. We could get a rating from an orthopedic Doctor. The rating would say you might have a 15% permanent partial impairment of the shoulder. Then we get you compensation. Also in the auto accident case, if you’ve got a claim against the at-fault driver you could also be compensated for your permanent injury. You could be compensated for your pain and suffering. There are other types of compensation available for instance, in workers’ comp, you’re entitled to disfigure benefits. If you have surgery and you end up with a surgery scar, you are entitled to be compensated for that scar. That’s called disfigurement. You can also make that same claim in the personal injury case in an auto accident case against the at-fault driver. There are other things that are available in the way of compensation claims both in workers comp and auto accident insurance claims.
The next question is:
“How could it possibly be legal to make two claims, how can you be allowed to collect money twice”?
The answer is that it’s legal to make both claims but, you’re not going to collect the same thing twice. For instance, if you have medical bills that are paid under workers comp, you’re not going to claim them under your auto insurance too. It’s good enough for workers comp to pay them. If you have lost wages, you’re not going to claim the loss wages twice; you’re going to claim the lost wages under comp. Then just get the difference between what comp pays and the 80 percent you’re entitled too under the auto insurance.
You’re not getting things twice. You are awarded compensation under workers comp and then you make a claim against the at-fault driver. In many cases, there is what’s called a LIEN, which means that workers comp pays when you get the compensation from the at-fault driver’s insurance company. You have to pay workers comp back. That way you’re not getting money twice for the same thing.
The next question is:
“What are the time limits for making insurance claims or filing lawsuits complaints”?
In these types of cases, generally speaking, in Delaware we’ve got a two-year statute of limitations. If you’re going to make a workers’ compensation claim you’ve got two years to either get an agreement signed and filed with the industrial accident or you have two years to get your petition filed with the industrial accident board. With an on the job auto accident claim, you have two years to file a lawsuit against the driver. You also need to make a personal injury protection claim under your own auto insurance or under the auto insurance for the vehicle, you were occupying. All of the medical bills need to be submitted for a loss, which needs to be submitted within two years or ninety days.
The next question from Sue is:
“Can I get fired for making a workers’ compensation claim”?
The answer is you can get fired for anything. The real question is what do you do about it. If you get fired in Delaware because you made a workers’ compensation claim and your employer got angry and decided to can you. You have a right to sue the employer for retaliation. The Delaware retaliation statue it’s pretty strong. If you have a situation where you make a claim for workers’ compensation benefits due to an on the job injury or on the job auto accident and your employer takes adverse action against you. They cut your hours; terminate you, that’s a retaliation claim. You should speak to an attorney about that.
“How much does it cost to talk to an attorney about an on the job accident situation”?
The answer is it doesn’t cost anything. We give free consultations to folks who were injured in an on the job accident. The consultation is free. When you meet with an attorney you find out more about your legal rights. We evaluate your claim. Then if you decide to hire an attorney typically what we do is hand all these types of cases on a contingency fee basis. This means that you only have to pay an attorney fee if we win or settle your claim. Typically in personal injury cases, attorney’s fees in Delaware tend to be one-third of whatever settlement you get. Sometimes it’s higher. In our firm, our standard fee agreement says that the attorney’s fees are 40% if your case goes to a jury trial. Now in other states that are not standard. In other states, I believe that attorneys fees may be higher. For instance, I know a lot of Philadelphia attorneys the charges standard 40% no matter what. I have met a couple of New York attorneys that charge higher than that.
Also, when you have certain types of claims the attorney’s fees can be limited by statute. For example: in Federal Tort Claims Act cases, attorney fees are limited to 25 % but that’s not your typical situation. That’s why a lot of attorneys won’t take those types of cases. Anyways just talk to an attorney and find out more about your legal rights and see if you’re comfortable with the attorney. See if the attorney wants to take your case and see if you want to take that attorney as your lawyer. That doesn’t cost anything. Consultations of these types of cases with the attorneys in my office are free. Also, consultations with attorneys in other offices are free as well. So you should give a call, let us hook you up with a consultation with a meeting with an attorney and find out more about your rights.
Ben Schwartz is the Managing Partner of Schwartz & Schwartz, Attorneys at Law. If you are searching online for a personal injury attorney, please contact Ben about your case. Ben and the other attorneys in the firm represent people who have been injured in car accidents, tractor-trailer and bus accidents, motorcycle accidents, slip-and-fall accidents, and dog bites. We have offices in Havertown (suburban Philadelphia), PA, Wilmington, DE and Dover, Delaware. Contact us today to see if we can help you!