Can I Sue My Employer if I’m Hurt at Work?


Before the Virginia workers compensation system was established in 1918, you had only one legal option if you were injured on the job: to sue your employer in civil court. This created several problems.


First, you need immediate medical treatment and wage loss benefits if you are injured on the job. But a civil lawsuit against your employer would have taken years to settle or go to trial. During this time you would have no job, no income, and more than likely no medical treatment. And without adequate medical care, it’s likely your physical condition would have suffered and even gotten worse, impacting your future earning capacity.


Second, you would have had to prove that your employer’s negligence caused your work injuries. And your employer could have raised several defenses, including assumption of risk, contributory negligence, and the fellow servant doctrine. These defenses were difficult to overcome.


Seeing the problems this situation caused, the Virginia legislature enacted workers’ compensation laws in the early 1900s. The purpose of workers compensation is two-fold: 1) to provide wage replacement benefits and medical care to injured employees efficiently and quickly, even if the injured worker is at fault¬†and 2) to provide financial certainty to employers by making workers compensation the exclusive remedy for injured employees, thereby limiting the amount of money an employer may have to pay an employee for work injuries.


As a general rule, workers compensation is your exclusive remedy for any injury arising out of and in the course of the employment, as well as any occupational disease related to your work. This means that you cannot sue your employer for work injuries or occupational illnesses. Or if you do file a lawsuit in civil court, it will be thrown out quickly.


There is, however, an exception to the rule that you cannot sue your employer for workplace injuries: When your employer is supposed to have workers compensation insurance coverage for its employees but did not purchase it.


In this situation you have two options: 1) filing a workers compensation claim against your employer anyway or 2) filing a lawsuit against your employer in circuit court.


Seeking Workers’ Comp Benefits from an Uninsured Employer and the Uninsured Employers’ Fund


A workers’ comp claim against an uninsured employer is like any other claim, except that an additional party will be added to the proceedings: the Uninsured Employers’ Fund. The Uninsured Employers’ Fund was established to make sure that injured employees are able to recover cash and medical benefits for work-related injuries even though their employer failed to comply with Virginia law. The Uninsured Employers’ Fund has its own attorneys and can raise the same workers compensation defenses that your employer can.


If you prove that you suffered a compensable injury and are awarded benefits, then your employer has a limited period to pay those benefits to you directly. If it fails to do so, then the Uninsured Employers’ Fund will step in and pay the benefits you’re owed. The Uninsured Employers’ Fund will then seek reimbursement from the employer.


There is a disadvantage to dealing with the Uninsured Employers’ Fund. In our experience it is conservative when negotiating workers compensation settlements. We tell clients who are dealing with the Uninsured Employers’ Fund that it is unlikely that the case will settle.


Suing Your Employer in Civil Court for Your Work Injuries


The second option when dealing with an uninsured employer is sue the employer for your work injuries.


Virginia Code Section 65.2-805 states that an employee can file a lawsuit against an employer to recover damages for personal injury or death by accident if the employer should have had workers’ compensation insurance at the time of the injury¬†but did not. An employer cannot raise the following defenses to such a lawsuit:


  • That the employee was negligent;


  • That the injury was caused by the negligence of a fellow employee; or


  • That the employee had assumed the risk of the injury.


This is a strict liability statute, which means that an employee does not have to prove that the employer’s negligence caused the work injuries. This is good for injured workers.


Suing your employer for work injuries is your best option only if your employer has significant assets or resources from which to collect damages. If you are injured while working for a smaller company or one that is not stable financially, then you should likely proceed through the workers’ compensation system.


Speak to a Workers Comp Attorney Today!


Have questions about your legal rights after getting hurt on the job? We can help. Contact Corey Pollard, voted one of the best workers compensation attorneys in Virginia, for a free strategy session.