Quick answer: Usually, yes. If you were driving for your job when another driver caused the crash, you can claim Illinois workers’ compensation benefits from your employer and also bring a personal injury claim against the at-fault driver. Workers’ compensation pays regardless of fault but does not cover pain and suffering; the claim against the driver can. Your employer’s insurer will have a lien on the injury recovery for the benefits it paid, so the two claims need to be handled together.
A crash on the job raises a question most people never had to think about: whose insurance pays? Your employer cannot generally be sued for a work injury, but the driver who hit you is not your employer. That opens a second claim on top of workers’ compensation. Car accidents are the most common situation in our practice where a client has both, and how the two claims are coordinated can make a real difference in what you keep.
Was the Crash Part of Your Job?
Workers’ compensation covers injuries that arise out of and in the course of your employment. A crash usually qualifies when you were driving as part of the work itself, for example while making deliveries, driving between job sites, visiting customers, running an errand your employer asked you to run, or traveling for work. It does not matter whether you were in a company vehicle or your own car.
Your ordinary drive to and from work is generally not covered, though there are exceptions, such as employees whose job requires travel. We explain the commuting rules in our post on injuries on the way to work or in the parking lot.
What Each Claim Covers
The two claims pay for different things, which is why having both matters:
| Workers’ compensation | Claim against the other driver | |
|---|---|---|
| Do you have to prove fault? | No | Yes, the other driver was negligent |
| Medical bills | Reasonable and necessary treatment for the work injury, subject to statutory payment rules | Recoverable as damages, subject to proof |
| Lost wages | TTD at two-thirds of your average weekly wage, subject to statutory minimums and maximums | Lost earnings, subject to proof and available coverage |
| Pain and suffering | Not available | May be recoverable |
| Permanent injury | Permanent partial disability award under the Act | Damages for disability and loss of a normal life |
| Main deadline | 3 years from the accident or 2 years from the last payment, whichever is later | Generally 2 years; claims involving a local government or its employees can have a shorter deadline and notice rules |
Workers’ compensation starts paying medical bills and wage-loss benefits while you recover, without waiting for anyone to decide who caused the crash. The claim against the other driver takes longer, but it is the only one of the two that can recover pain and suffering, and it may recover lost earnings beyond what workers’ compensation pays. What you actually recover depends on proof, any share of fault assigned to you, and the insurance available.
Fault works differently in the two claims. Workers’ compensation can be available even if you caused the crash. A claim against the other driver is reduced by your percentage of fault and is barred if you were more than 50% responsible.
Whose Insurance Pays in a Work Car Accident
Your claim against the other driver is paid by that driver’s liability insurance. Illinois requires drivers to carry only $25,000 per injured person and $50,000 per accident for bodily injury, plus $20,000 for property damage. Those are minimum insurance requirements, not a limit on your damages, but a serious injury can easily exceed them.
When the other driver has no insurance or too little, uninsured and underinsured motorist coverage (UM/UIM) may fill the gap. More than one policy may apply, including the other driver’s policy, your employer’s commercial auto policy, and your own policy, along with any endorsements. Who owns the vehicle you were driving does not by itself decide which coverage applies, so every policy that might apply should be reviewed.
Read the UM/UIM policy terms carefully. Many include a provision that reduces what they pay by the workers’ compensation benefits you received. In Taylor v. Pekin Insurance Co., 231 Ill. 2d 390 (2008), the Illinois Supreme Court enforced that kind of reduction in an employer’s uninsured motorist policy, and held that the 25% attorney’s fee under Section 5(b) did not apply. A contractual reduction under an insurance policy is different from the workers’ compensation lien on a recovery from the negligent driver. Whether a reduction applies to you depends on the wording of the particular policy.
The Workers’ Comp Lien on Your Recovery
Under Section 5(b) of the Illinois Workers’ Compensation Act, when you recover from the at-fault driver, your employer’s insurer is entitled to be repaid from that recovery for the benefits it paid. When your attorney’s work produced the recovery, the insurer must pay 25% of its reimbursement as an attorney’s fee, plus its proportionate share of case costs, unless the parties agree otherwise. That reduces what it takes back. The insurer may also claim a credit against future benefits. Liens are often negotiated further when the driver’s insurance is limited.
For a full explanation of how the lien and the fee reduction work, see our post on third-party claims and Section 5(b) liens in Illinois.
Mistakes to Avoid After a Work Car Accident
- Giving a recorded statement to the other driver’s insurance company before talking to a lawyer.
- Settling the injury claim without addressing the workers’ compensation lien and future credit.
- Letting the deadline for the injury claim pass while the workers’ compensation case is still open. It is generally two years and can be shorter for claims involving a local government.
- Not reporting the accident to your employer within 45 days. See our post on workers’ compensation deadlines.
- Assuming the police report settles fault. Get a copy and check it for errors.
Why It Helps to Have One Firm Handle Both Claims
Because we handle both workers’ compensation and personal injury cases, we represent clients on both claims at the same time. That keeps the medical evidence consistent, makes sure the injury settlement accounts for the comp lien and any future credit, and lets us negotiate the lien with the full picture of both cases in front of us.
If you were hurt in a car accident while working, the attorneys at The Law Offices of Millon & Peskin, Ltd. can review both your workers’ compensation claim and your car accident claim. We represent injured workers throughout the Chicagoland area, including DuPage, Cook, Will, Kane, and Lake counties. Consultations are always free, and we are paid only if you recover. Call 630-260-1130.