Difference Between a Personal Injury and Worker's Compensation Claim in New Mexico

Kevin Holmes Nov. 13, 2020

If you've been hurt because of someone else's wrongdoing, you may consider filing an insurance claim or a lawsuit for your injuries. We typically call that a "personal injury" claim--because you have suffered an injury to your person.

But what if you get hurt at work? Can you still file a personal injury claim if you have been hurt at work?

It Depends.

In New Mexico, if you have been hurt at work, you may file a workers' compensation claim on your employer's workers' compensatio insurance to get disability pay and medical care, regardless of who is at fault for your injuries.

The tradeoff, however, is that you generally cannot sue your employer (or any of your coworkers) for causing your injuries. In exchange, you also typically do not have to prove that your employer's negligence caused the injury or that you were not at fault. If it happened at work, it should be covered.

But if you were hurt at work because of the wrongdoing of someone other than your employer or co-workers, you may be able to file both a personal injury suit (against the wrongdoer) and a workers' compensation claim.

So What's the Difference Between a Personal Injury Claim and a Workers' Compensation Claim

In a word, a lot.

A workers' compensation claim is a no-fault claim against an employer's workers' compensation insurance policy by a worker who was injured on the job.

A personal injury claim is a lawsuit (or threat of a lawsuit) against an at-fault party by a person injured due to the wrongdoing of another.

A workers' compensation claim is filed with the employer's insurance company, and if a dispute arises, a lawsuit has to be filed in the New Mexico Workers' Compensation Administration, which is an administrative law agency staffed by Administrative Law Judges (who are attorneys) called Workers' Compensation Judges. The Administration and the Judges deal only with Workers' Comp claims.

A personal injury claim is filed with the at-fault party's insurance company and requests that the insurance company pay the injured party money immediately. If the insurance company fails to do so or refuses to do so, the injured party may file a lawsuit against the at-fault party in civil court. Civil Courts are our regular courts--usually New Mexico District Courts. The claims are heard by regular law judges (who not administrative law judges and who are usually attorneys) in courts that hear all kinds of cases (disputes about name changes, insurance and business disputes, medical malpractice cases, etc.).

What is the Difference Between the Benefits Available Under Workers' Comp and a Personal Injury Claim?

There are key differences between a workers' compensation and personal injury claim.

Benefits available under a workers' comp claim include:

  • Temporary Disability Pay while the injured worker is out of work (calculated at a rate of 2/3 of a worker's average weekly wage)

  • Reasonable and Necessary medical treatment for the injury for the life of the injury (meaning forever)

  • Permanent Disability Pay for any permanent impairment after the worker is treated

Benefits that are not available under a workers' comp claim include:

  • damages for pain and suffering

  • punitive (punishment) damages

  • the other 1/3 of the worker's wages through disability pay (that is, the benefits available are 2/3 of a worker's pay; the injured worker loses that other 1/3 of pay for the duration of his or her disability)

Benefits available under a personal injury claim include:

  • lost wages (100% of lost wages)

  • lost earning capacity

  • pain and suffering

  • punitive (punishment) damages

  • lost enjoyment of life (that is, compensation for losing out on doing the things you used to do that you cannot do anymore)

  • loss of intimate relationships due to the injury

  • emotional distress

  • the reasonable value of all medical care and expenses, including money for future medical care and expenses

As you can see, the compensation available for a workers' compensation claim is very limited. Which is why if you have a claim that is both a Workers' Compensation claim and a personal injury claim, it is important that you have an experienced attorney who can represent you for both claims.

Contact Holmes Law Firm today for a free consultation if you've been hurt at work or due to the wrongdoing of another.