Workers' Compensation as the "Exclusive Remedy"

By Aaron Larson

March, 2005

Contents

• What Is Meant by "Exclusive Remedy"
• When Can A Personal Injury Claim Be Filed?
• Common Personal Injury Claims

What Is Meant by "Exclusive Remedy"

Workers' compensation statutes in most states limit a worker's remedies for work-related injuries to a workers' comp claim against the employer. Except in narrow circumstances, such as where the employer actually intends to cause harm to the worker, no matter how egregious the employer's conduct the worker's sole remedy against the employer will be through the workers' compensation system. Typical workers' compensation laws similarly bar actions against co-employees who cause the worker's injury. Thus, workers' compensation coverage is referred to as the "exclusive remedy" available to an injured worker. In many cases, this works to the advantage of the employee, as the employee will receive benefits for lost wages, medical care and rehabilitation, even if the worker causes his own injury.

Nonetheless, there are circumstances where a personal injury action remains possible. For example, sometimes an employee will be injured while on the premises of another business, or by the actions of a person who is not a co-employee. Under those circumstances, the injured worker may be able to bring a personal injury action against that third party defendant.

When Can A Personal Injury Claim Be Filed?

A personal injury claim may be filed whenever workers' compensation laws don't prohibit the personal injury suit. As was just mentioned, this typically involves situations where the worker is injured to the negligence of a "third party" - a person or entity which is neither the worker's employer nor their co-employee. Workers' compensation does not block a lawsuit for injuries intentionally caused by an employer, but those cases are rare.

The "exclusive remedy" provisions of workers' compensation law typically apply only when the employer carries workers' compensation insurance coverage as required by state law. An employer who chooses not to obtain required coverage, or (in the few states which permit this) opts out of the workers' compensation system, will not be protected by the "exclusive remedy" provision. In a few jurisdictions, the worker may also be able to opt out of workers' compensation, having the right to choose between pursuing a claim for guaranteed benefits under the workers' compensation system , or to instead pursue a personal injury action. However, most states do not permit either the employer or employee to opt out of the system.

It can sometimes be tricky to determine if an injury was caused by a "third party", as some states have created rather complicated rules of what constitutes "employment" under the worker's compensation laws, and permit workers to be deemed the "co-employees" of multiple employers (thereby limited by the "exclusive remedy" provision to bringing workers' compensation claims against any of their multiple employers).

It is almost always beneficial to work with an attorney, when trying to figure out whether or not workers' compensation is the "exclusive remedy" for injuries which may have been fully or partially caused by a third party.

Common Personal Injury Claims

Situations where an injured worker may be able to bring a personal injury lawsuit in addition to a workers' compensation claim include the following:

Product Liability Actions - Sometimes a worker will be injured by using defective or unreasonably dangerous equipment, or due to dangerously deficient instructions or warnings in relation to the operation of the equipment, and the fault for the defect will lie with a third party (e.g., the manufacturer, distributor, or installer of the equipment). It may be possible for the injured worker to bring a product liability action against that third party.

Third Party on Employer's Premises - Sometimes a third party will be on the premises of the employer, and will commit an act which causes injury to the employee. For example, a contractor may be performing roof repairs on the employer's building, and drop a tool on a worker's head, or a delivery driver in a warehouse may injure an employee by hitting him with a forklift. Where the injury is caused by a person who truly is a third party, and has no employment relationship with the injured worker's employer, it may be possible to pursue a personal injury action against that person (and possibly also that person's employer).

Injury Occurring On Somebody Else's Premises - Sometimes a worker will be performing job duties away from the employer's premises, and will suffer injury due to the conduct of somebody at the remote jobsite. For example, a delivery driver may become involved in a car accident, and will usually be able to sue the driver who caused the accident in addition to claiming workers' compensation. Similarly, a worker who is performing tasks at another facility, who is injured by the negligence of a third party while performing that work, may be able to bring a personal injury suit against the negligent third party (and, again, possibly also that person's employer).

Intentional Torts - If the employer actually intends to harm the worker, the exclusive remedy provision of workers' compensation law will not apply and the injured worker may bring a lawsuit against the employer. Note that this does not extend to situations where the employer acts with indifference, or creates an exceptionally and unlawfully hazardous working environment - it means an actual intent to cause harm. Due to its narrow nature, this exception is rarely implicated.

One of the most common contexts where an injured worker may have a claim against a third party is within the context of construction cases. It is not unusual for workers from multiple contractors and subcontractors to be simultaneously working on the same construction site, and as a result it is not uncommon for a construction injury to have been caused by the negligence of a third party who remains subject to personal injury litigation.