Should I File a Personal Injury Claim or for Workers Compensation?


Can I file a Workers Comp Claim and a Personal Injury Case at the Same Time?

As a general rule, the Pennsylvania Workmen’s Compensation Act provides the exclusive remedy for employees who seek recovery for injuries sustained in the course of their employment. This means that employees who receive workers’ compensation benefits may not also claim tort damages against the employer. In other words, employers enjoy immunity from liability in tort cases.

Workers’ compensation protects both employees and employers.  It protects employees by ensuring that they can be compensated for wage loss and medical expenses in connection with a work injury. It protects the employer by having workers’ compensation be the exclusive remedy, and makes the employer immune to liability for tort damages when that employer is already on the hook for workers’ compensation.

“Statutory employment” is a finding of an employer-employee relationship, and can be used as both a defense by employers (to avoid tort liability), and can also be used by employees as a protection (finding another entity liable for workers’ compensation benefits when the entity who actually hired the employee does not carry workers’ compensation insurance.)

Statutory employment as a defense from tort liability – The McDonald Test

The statutory employer defense (immunity from common law of tort liability) is available to contractors who can establish the following elements:

  • A contractual relationship with the owner of the premises orsomeone in the position of an owner;
  • The premises are occupied by, or under the control of, the contractor;
  • The contractor hires a subcontractor to work on the premises;
  • Work subcontracted is a part of the contractor’s regular business; and
  • The injured worker is an employee of that subcontractor.

What types of injuries are excluded from workers’ compensation?


  • Intentionally self-inflicted injury or death
  • Injury or death caused by the employee’s violation of law
  • Violation of a positive order
  • Due to personal animosity
  • Injuries that would not have occurred but for the intoxication of or illegal use of drags by the employee.

Violation of Law:

  • Burns v WCAB (State Pipe Servs) and Abbots Dairies v. WCAB (Yates) state that where injury/death is caused by violation of law, compensation is not payable.
  • If substantial evidence shows that intoxication did not cause the death, compensation was payable – MDS Labs v. WCAB (Munchinski) and Oaks v. WCAB (PA Electric). Mere proof of intoxication at a level in violation of the Motor Vehicle Code, without proof that the intoxication caused the injury of death, is not sufficient to deny compensation.
  • Graves v. WCAB (Newman) the employee was not eligible for benefits when he was injured on the job, because he obtained the job after escaping official detention. Therefore, his inability to work was not caused by the injury, but rather by his own violation of law and his having to be in detention.

Violation of positive work order:

  • Affirmative defense, employer must establish
  • Injury was caused by the violation
  • Employee actually knew of the order or rule
  • Order or ule implicated activity not connected with employee’s work duties
  • Examples: joyriding a forklift without being certified to drive, violating a forbidden work area, driver injured when changing tire on truck when employer mandated that tires are to e changes by professionals and not drivers = benefits not payable.

Personal animosity:

  • An injury caused by a third person intending to injure an employee because of personal reasons to the third person and not directed against the employee because of the employment is excluded from the course and scope of employment and therefore not compensable.

Citing Hershey v. Ninety-Five Assocs., 604 A.2d 1068U (Pa. Super. 1992):

  • “As a general rule, the Pennsylvania Workmen’s Compensation Act provides the exclusive remedy for employees who seek recovery for injuries sustained in the course of their employment.” Wagner v. Natural Indemnity Co., 492 Pa. 154, 422 A.2d 1061 (1980).
  • “Section 301(c) of the Act provides in pertinent part that:
    • The term “injury arising in the course of his employment”, as used in this article, shall not include an injury caused by an act of a third person intended to injure the employee because of reasons personal to him, and not directed against him as an employee or because of his employment . . .
  • In such cases, the employee can pursue her common law remedies against her employer, and attempt to prove that the employer was negligent in failing to take precautions necessary to prevent a foreseeable attack by the third party. This provision of the Act, however, has been narrowly construed by our courts to allow recovery only in cases where the third party’s actions were motivated by a history of personal animosity toward that particular employee. Mike v. Borough of Aliquippa, 279 Pa.Super. 382, 421 A.2d 251 (1980).