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

 

Workers’ Compensation is the Exclusive Remedy for Most Work-Related Injuries in Virginia. We Explain When You Can and Cannot Sue Your Employer for a Workplace Injury.

 

 

Virginia workers compensation is employer-funded insurance that provides wage replacement, cash payments for permanent impairment, and medical benefits to employees who are hurt or become ill in the course of employment. If you were injured at work, your employer must provide coverage for your medical treatment, lost wages, and permanent partial disability. 

 

Under this system, however, you cannot sue your employer for a work injury. But there are some exceptions.

 

This article explains when you can and when you can’t sue your employer for a workplace injury in Virginia. If you have questions, or are looking for high-quality legal representation, contact Corey Pollard for a free consultation: 804-251-1620 or 757-810-5614. We represent injured employees in Richmond, Virginia Beach, Fairfax, Fredericksburg, Newport News, Roanoke, and across the state.

 

 

When is Workers’ Comp the Exclusive Remedy for My Injuries and Wage Loss?

 

When you are hurt on the job, your life may change drastically. Medical treatment, including ER visits, hospitalizations, diagnostic tests, surgeries, therapy, and medication, as well as a decrease in earnings dominate your life.

 

You also have to deal with the injury itself, which may cause physical pain and emotional turmoil. You may be angry that you got hurt and that your quality of life will change now. Your injury may even prevent you from returning to your career.

 

In most situations workers’ compensation is your exclusive remedy for recovering damages if the injury arises out of and in the course of the employment. This means that you cannot sue your employer for your work injury. If you file a personal injury lawsuit in civil court, it will be thrown out quickly.

 

There are, however, two exceptions that allow you to sue the employer or a co-worker.

 

Victims of sexual assault have the option of pursuing a civil action against the attacker regardless of whether the attacker is their employer or a co-worker. And an employee whose employer should have had workers’ compensation coverage but did not purchase it may pursue a civil action.

 

Because Workers’ Compensation is the Exclusive Remedy for Most Workplace Injuries, Employers are Required to Carry Workers’ Comp Insurance Coverage

 

Virginia law requires employers operating in the state to carry workers’ compensation coverage for their employees, with some limited exceptions. Employers with three or more part-time or full-time employees in service must carry workers’ compensation coverage for all employees, even those who work just a few hours per week.

 

An employer may choose to self-insure if it has the financial resources to do so and is permitted by the Commonwealth of Virginia.

 

Employers, including self-insured employers, are bound by the Virginia Workers’ Compensation Act’s provisions. In addition to providing workers’ compensation coverage to their employee, employers must:

 

  • Post a notice explaining labor and employment laws in the workplace; and,

 

  • Report accidents to the Commission.

 

Employers are prohibited from:

 

  • Charging the employee for any portion of the workers’ compensation insurance premium or payments made in the form of benefits; and

 

  • Terminating, disciplining, or in any way discriminating against an employee exercising his or her rights under the Workers’ Comp Act. An employer cannot retaliate against an employee for pursuing workers’ compensation benefits.

 

Can I Sue My Employer for a Work Injury if it Has Failed to Comply with the Workers’ Compensation Act and Does Not Have Insurance Coverage?

 

If you’ve been hurt at work and your employer does not have workers’ compensation insurance, you should contact an experienced workers comp lawyer right away. You have two options: 1) file a workers’ compensation claim against your employer and make the Uninsured Employers’ Fund (UEF) a party to the case or 2) file a lawsuit against your employer in civil court to recover damages for your work injury.

 

You should contact the Workers Compensation Commission if your employer does not carry workers comp insurance. Provide your employer’s name, address, and the date of your accident.

 

The Commission may impose sanctions, civil penalties, and fines against the employer for its failure to purchase workers’ compensation insurance coverage. Employers in Virginia who fail to provide insurance for their employees face a civil penalty of up to $250 per day for each day of noncompliance, subject to a maximum penalty of $50,000 total. This maximum penalty is an increase from just a few years ago and is intended to force employers to comply.

 

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 Virginia workers compensation settlements. We tell clients who are dealing with the Uninsured Employers’ Fund that it is unlikely that the case will settle because they are unlikely to receive a fair offer. Instead they will need to present their case at a workers comp hearing and try to receive an Award Order.

 

Suing Your Employer for Your Work Injury in Civil Court 

 

The second option when dealing with an uninsured employer is sue the employer for your work injuries. This is the best option if your employer has significant assets from which to collect a judgement.

 

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.

 

If Workers’ Compensation is the Exclusive Remedy, Can I Sue a Third Party for Causing My Injuries?

 

Workers’ compensation is the exclusive remedy for recovering damages from your employer, a co-worker, or any other person who was performing work similar to your employer’s trade, business, or occupation at the time of your workplace accident. It does not prevent you from suing negligent third parties for causing your injuries.

 

You may bring a common law tort action against any other person or entity whose negligence caused your accident or injuries. This is called a third-party action. For example, you may have a third-party action against a product manufacturer if you were hurt on the job because of defective machinery.

 

 

Speak to a Workers Comp Attorney Today to Decide Your Best Option

 

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. The road to financial security is just a call, text, or email away.

 

Corey Pollard
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