“Will I get compensated for my pain and suffering?” This is one of the most common questions I get as a Virginia workers compensation lawyer.

Severe work injuries can cause a lifetime of pain and suffering. A work injury will have a negative affect on you physically, mentally, and financially. It only makes sense that you expect to get compensated for what you’ve gone through – and what you will have to continue to go through for the rest of your life.

Unfortunately the answer to this question is no. When Virginia workers’ comp is your exclusive remedy, you cannot get compensated for your pain and suffering. This answer has a huge impact on the average value of Virginia workers compensation settlements.

The Development of the Workers' Compensation System Explains Why There is No Compensation for Pain and Suffering

Workers’ compensation systems have been around for centuries. Some historians say that 17th century pirates had a form of workers’ comp. Pirates hurt on the job would receive money and prizes from fellow pirates.

Germany was the first nation to establish a legal compensation plan for injured employees. That was done in the late 1800s. France, Italy, and England soon followed and established plans of their own.

Maryland established a workers’ compensation law in 1902, becoming the first state to do so. Virginia was the 37th state to pass a workers’ compensation law. That was done in 1919. Now every state has a workers’ compensation law.

So why were workers’ compensation laws necessary? Because injured employees and employers were unhappy with common law remedies.

Before workers’ compensation laws were passed, an injured employee would have to sue his or her employer in civil court. The employee would have the burden to prove that the employer was negligent in that it had failed to provide a reasonably safe work environment, and that the breach of duty caused the employee to get hurt on the job.

Even when the injured employee proved negligence, he would have to overcome several defenses. These defenses included contributory negligence, assumption of risk, and the fellow-servant rules. Each of these defenses served as a bar to compensation for the work injuries.

Employers were often successful using these common law defenses. Countless injured workers received no compensation. And even when an injured employee did prevail, he had to wait years because of litigation delays. This caused an enormous burden on society. Injured workers and their families had to rely on charity when they were denied compensation, which in turned put stress on society.

Though employers had success defending against these claims, they were not happy with the common law system. When the injured employee was able to overcome these defenses, juries would often render large verdicts that compensated the injured employee for pain and suffering.

To remedy their concerns, injured employees and employers reached a compromise. Under most workers’ compensation systems, an injured employee is unable to receive compensation for pain and suffering. In exchange, employers cannot argue contributory negligence, assumption of risk, or the fellow-servant rule. You can still obtain work comp benefits if your negligence caused the job injury. As with most compromises, neither side has ended up happy.

More job injuries and work-related accidents are covered under workers’ comp because negligence is not a bar to recovering benefits. You can receive benefits even if your own negligence caused the accident and your injuries. The commission has awarded benefits time and time again, even when the employer has proven that the injured employee was at fault. We’ve successfully obtained work comp benefits and settlements for employees who were injured while violating traffic laws, even when they received a ticket for their actions.

Virginia Workers' Compensation is Your Exclusive Remedy in Most Cases

So if Virginia workers’ compensation does not provide for compensation for pain and suffering, why not file a civil action instead of a claim with the commission? Because the law states that workers’ compensation is your exclusive remedy when you are hurt on the job.

Virginia Code Section 65.2-307 is called the “exclusivity bar.” It limits an injured employee’s right to recover for injuries sustained on the job to those benefits allowed under the Virginia Workers’ Compensation Act.

Code Section 65.2-307 says that when the employer and employee have accepted the provisions of the Virginia Workers’ Comp Act because of a compensable work injury or fatality, that acceptance excludes “all other rights and remedies of such employee, his personal representative, parents, dependents or next of kin, at common law or otherwise, on account of such injury, loss of service or death.” Most injured employees are bound by the Act. If you bring an action in civil court, the employer will file a plea in bar to get the action dismissed – and likely prevail.

Depending on how you were injured at work, you may have a third-party claim if someone else’s negligence caused your injury. For example, if you are hurt in a motor vehicle crash while working, you may have a work comp claim against your employer and a civil action against the other drive. If so, you can receive compensation for pain and suffering in the third-party action. Contact an experienced Virginia workers compensation attorney to evaluate your options.