The general rule is that workers compensation provides the exclusive remedy for employees hurt on the job. This doctrine gives immunity from civil lawsuits to employers and co-workers for occupational injuries and illnesses.
Civil actions (lawsuits) naming your employer as a defendant are not an option. Indeed, the court will likely dismiss your lawsuit if your employer files a plea in bar or a demurrer.
But there are some exceptions to the exclusive remedy doctrine, where you can exit the workers comp system and use tort laws to recover damages for work-related personal injuries.
This article explains when you can sue your employer for a workplace injury or an occupational disease.
We hope you find this information helpful.
Call (804) 251-1620 or (757) 810-5614 for help with your Virginia workers compensation or negligence claim.
Our law firm obtains top-dollar work injury settlements for employees who have suffered catastrophic injuries or developed life-long illnesses from their employment.
Money is the reason to look for an exception to the exclusive remedy rule to bring a civil claim against your employer for an occupational injury.
Workers compensation aims to provide medical treatment and pay income replacement benefits (temporary partial or temporary total disability) during your recovery, and if you suffer permanent impairment, to compensate for permanent partial disability to the injured body part. Otherwise, your remedies are limited.
In contrast, a civil action against your employer allows you to recover money for additional damages, like diminished future earning capacity, the cost of medical charges (not just what insurance paid), emotional distress, and physical pain and suffering.
Depending on where you bring your injury claim, statutes or common law (judge-made law) may provide multiple exceptions to the exclusive remedy doctrine.
The Workers Compensation Act is the starting point to look for exceptions to the exclusive remedy doctrine.
This statute provides four situations when you can sue your employer in tort for an injury.
Code Section 65.2-301 gives victims of sexual assault the option to seek workers compensation benefits if “the nature of such employment substantially increases the risk of such assault” and the victim “promptly reports the assault to the appropriate law-enforcement authority.”
In this regard, the first part of the statute defines when sexual assault is a covered work injury.
In the alternative, “an employee who is sexually assaulted and can identify the attacker may elect to” file a lawsuit “against the attacker, even if the attacker is the assaulted employee’s employer or co-employee.” Full damages are available.
The workers comp system does not cover sexual harassment or workplace stress resulting from a hostile work environment.
Instead, under Code Section 65.2-301(c), the victim of sexual harassment must bring a lawsuit.
Code Section 65.2-805 gives you the right to sue your employer for injury or illness if it failed to carry workers compensation insurance when it should have.
The statute says the employer is “liable during continuance of such failure to any employee either for compensation under [the Workers Compensation Act] or at law in a suit instituted by the employee against such employer to recover damages for personal injury or death by accident.”
Further, if you file a civil action, the employer cannot raise any of these defenses:
In effect, Code Section 65.2-805 is a strict liability statute where your sole focus is proving the damages amount.
Suing your employer under this statute is an excellent option if your employer has significant assets or resources to pay a judgment or for you to garnish. Otherwise, you may get a paper victory with empty pockets.
Code Section 65.2-308 offers another opportunity to sue your employer for labor and employment issues arising from a workplace accident.
This statute, entitled Discharge of employee for exercising rights prohibited; civil action; relief, says:
A. No employer or person shall discharge an employee solely because the employee intends to file or has filed a claim under [the Workers Compensation Act] or has testified or is about to testify in any proceeding under this title. The discharge of a person who has filed a fraudulent claim is not a violation of this section.
If your employer violates this provision, you “may bring an action in a circuit court having jurisdiction over the employer or person who allegedly discharged the employee in violation of this section.”
If you win this lawsuit, the court may “restrain violations and order appropriate relief, including actual damages and attorney’s fees to successful claimants and the rehiring or reinstatement of the employee, with back pay plus interest at the judgment rate as provided in Section 6.2-302.”
Some states allow injured employees to sue their employers outside of workers comp using the dual capacity doctrine.
This doctrine treats the employer as a third party vulnerable to suit by an employee if the employer “possesses a second persona so completely independent from and unrelated to his status as employer that by established standards the law recognizes it as a separate legal person.”
The dual capacity doctrine rests on a finding that the employer-employee relationship does not exist when the injury occurred. Instead, the employer owes the employee a duty that arises independently from the employment contract.
For example, courts have applied this doctrine to allow an injured employee to sue their employer when:
In addition, an injured worker may use the dual capacity doctrine to sue their employer when a product the employer manufactures has a defect that causes the employee’s injury.
Unfortunately, Virginia does not follow the dual capacity doctrine in creating an exception to the exclusive remedy rule.
Many states have an exception to the exclusive remedy rule when an employer’s intentional acts, or those of a fellow employee, cause injury or illness to you.
The exception, which allows you to sue an employer for intentional torts, covers a wide range of offenses. These include assault, battery, false imprisonment, intentional infliction of emotional distress for psychiatric injuries, malicious prosecution, civil rights violations, right to privacy, and more.
Courts have offered various reasons for the intentional tort exception to the workers comp bar:
Other states do not create an exception for intentional misconduct by the employer; however, they offer enhanced penalties to injured employees.
Virginia, however, follows neither approach.
Except for sexual assault, Virginia does not have an intentional tort exception to workers compensation.
It’s a Common Scenario: Your employer’s mishandling of a work injury and the subsequent return to work issues may lead to state and federal labor and employment law violations.
You may sue your employer for breaking other laws meant to protect employees. For example, you may have a claim under one of these laws or theories:
You may also file a complaint for unsafe work conditions with the Occupational Safety and Health Administration (OSHA).
A recently published judicial opinion in Florida, Bottling Group, LLC v. Bastien, No. 3D23-1298 (Fl. 3d. Dist. Ct. App. Apr. 24, 2024), shows when equitable estoppel may allow you to sue your employer for a work accident.
In Bastien, the court, using the estoppel doctrine, held the employer could not shield itself from tort liability using the exclusivity doctrine when it had opposed the plaintiff’s workers comp claim and alleged the injury did not occur within the course and scope of the employment.
Therefore, you can potentially overcome the workers comp bar and sue the employer in tort when it denies your initial claim for benefits, then takes an inconsistent position in civil court.
Most workers compensation claims arise from traumatic injuries.
But not all.
Some arise from an ordinary disease of life or an occupational disease.
These disease claims are challenging to prove.
If you are unlikely to prove a compensable disease under workers comp, you may have a viable lawsuit against your employer for the condition.
Claims for defamation, including libel (written statements) and slander (spoken statements), fall outside of the workers comp scheme.
Therefore, you may sue an employer for defamation because an injury to your reputation is not an injury by accident under the Workers Compensation Act.
Some states allow injured employees to sue their employers or the insurance carriers for bad faith when the employer or carrier fails to act in good faith.
Typically, the employee must show more than mere negligence to prevail.
Virginia is not one of these states.
Instead, the Workers Compensation Act provides sanctions against the employer or insurer for defending a claim without reasonable grounds.
The historical development of workers compensation law explains why injured employees can sue their employers in limited circumstances.
But knowing why workers comp is often the exclusive remedy against your employer does not take away the sting of inadequate benefits.
Our lawyers evaluate all occupational injury claims to determine if additional civil (including lawsuits against the employer or third-party actions) or administrative remedies (including Social Security disability) exist.
Contact us today to see if we will accept representation in your case.