Builders and Contractors Exchange
Weekly Bulletin: 22 feb 2008
Employer Issues In Workers' Compensation: The "Exclusive Remedy" Provision
By: Lisa L. Thatch
When an employee suffers an injury that arises out of his or her employment, the Virginia Workers' Compensation Act limits his or her remedies for work-related injuries to a workers' compensation claim against the employer. Thus, workers' compensation 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 and medical care, even if the worker causes his own injury. It also benefits the employer by limiting the recovery to the benefits permitted by statute.
Nonetheless, there are circumstances where a personal injury action remains possible; for example, where the employee is injured while on the premises of another business, by the actions of a person who is not a co-employee, or by defective or unreasonably dangerous equipment or machinery. Under these circumstances, the injured worker may be able to bring a personal injury action against that third party.
The construction industry is a common breeding ground for third party claims. It is not unusual for workers from multiple contractors and subcontractors to be simultaneously working at the same construction site, and as a result, construction injuries are often caused by the negligence of a third party.
The value of a viable third party lawsuit lies in the recovery rights available to the workers' compensation insurance carrier, or the employer if self-insured. If, for example, workers' compensation benefits are paid to an injured worker who subsequently succeeds in recovering monetary compensation from a third party lawsuit, the employer or insurance company is entitled to recover all or a portion of the workers' compensation benefits paid out. However, it can sometimes be tricky to determine if an injury was caused by a third party, as the Virginia Workers' Compensation Act has created rather complicated rules regarding what constitutes an "employer" and what workers are deemed "co-employees." It is therefore beneficial to work with an attorney to determine whether or not workers' compensation is the "exclusive remedy" for injuries which may have been fully or partially caused by a third party.
Questions?
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This article is meant to bring awareness to this topic and is not intended to be used as legal advice.