When Can an Injured Person File a Workers Compensation Claim and Third Party Personal Injury Lawsuit at the Same Time in Virginia?


In most situations Virginia does not allow employees to file a civil action for personal injuries against employers or fellow employees. The Workers Compensation Act presumes that every employer and employee accepts the Act’s provisions. This includes the presumption that the employer will pay and the employee will accept compensation for injury or death by accident arising out of and in the course of the employment.


When an employee in Virginia is injured while performing job duties and responsibilities for his employer, the Workers Compensation Act is the sole and exclusive remedy against the employer. Virginia Code Section 65.2-307; McCotter v. Smithfield Packing Co., 849 F. Supp. 443 (E.D. Va. 1994). An employer is immune from liability in a civil suit filed by an employee who is hurt while engaged in work that is part of the employer’s trade, business, or occupation.


The Workers Compensation Act is also the exclusive remedy for employees who suffer an occupational disease because of their employment, such as illness due to toxic mold exposure.


This workers comp exclusivity bar applies even if the employer is guilty of gross negligence or intentional acts that violate OSHA rules and regulations and cause injury or death.


So you can always file a lawsuit against your employer in civil court, but if the employer’s attorney files a plea in bar stating that your exclusive remedy is under the Workers Compensation Act then your case will likely get dismissed.


There is, however, an exception to the workers comp exclusivity bar in Virginia. If an employer does not have workers compensation insurance even though it is obligated to have it, then an injured employee may pursue workers comp benefits through the Uninsured Employers’ Fund (UEF) or file a civil action for damages against the employer.


A civil action against the employer is a good idea only if the employer has assets to pay the judgement. If the employer is judgement proof, and many employers who fail to carry workers compensation insurance coverage are, then the injured employee should pursue benefits through the UEF.


Is a Third Party Responsible for the Work-Related Injuries in Virginia?


Virginia law, however, allows an injured employee to file a workers compensation claim against his or her employer while also pursing a personal injury lawsuit against a third party whose negligence caused the injuries. So as a Richmond personal injury lawyer and workplace accident attorney I always analyze the possibility of filing both a workers compensation claim and a third-party civil action on behalf of my client. This article explains the advantages and disadvantages of both types of claims and when you can pursue them together.


Analyzing Whether You Have a Potential Workers Compensation Claim and Third-Party Personal Injury Lawsuit in Virginia


When determining whether a client may have a civil action for personal injuries or is limited to workers compensation in Virginia, I review the following:


  • Where was the injured person when he was hurt? By this I’m looking for the physical location where the accident happened.


  • What was the injured person doing at the time he was injured?


  • Was the person injured while working or performing an activity that might reasonably benefit his employer, even if off the clock technically?


  • Was the injured person working with anyone else at the time of the accident? If so who were those people and who do they work for?


  • Who did the injured person work for?


  • Did anyone direct the injured person to perform the activity that he was doing at the time of the accident?


  • Who scheduled the activity that the person was doing at the time he was injured?


  • Who determined the method in which the person would perform the activity he was doing at the time of the accident and injury?


  • Did the injured person have a contract of employment with the employer?


  • Did the employer for whom the injured person worked have a contract of employment with another company for that job site or construction project?


  • Who paid the injured person and how was he paid? I’m trying to determine whether the injured person was paid with cash or a check and whether he was paid by the hour or a lump sum when the job was completed.


  • Who could hire and fire the injured person?


  • Was there an official relationship between the injured person and the company or person who caused his injures?


  • Whose tools and equipment were being used at the time of the accident?


  • Did the activity benefit the defendant or employer?


  • Whom else employed the injured worker to do that type of work?


  • How long had the injured worker been doing that type of work?


  • How many other projects had the injured worker completed for that employer?


  • What percentage of the injured worker’s income came from that employer?


The answers to these questions are just the start of determining (1) whether the injury arose out of and in the course of the employment, (2) the trade, business, and occupation of the other employers and third party persons on the job site; (3) whether there is a potential statutory employer relationship; and (4) whether the injured person was an employee or an independent contractor.


The key question is who had control over the injured person’s work. If someone else had control then the injured person may be entitled to workers compensation benefits. If the injured person had control over how he completed the project then he is likely an independent contractor who is not entitled to workers comp benefits.


We are also looking at whether a third party manufacturer may be responsible for the personal injuries. For example many injuries affecting union members, construction workers, and food service employees involve ladders, scaffolds, electrocution, and heavy machinery. A skilled attorney will investigate whether the manufacturers of any of these items is to blame for the injuries and damage.


Benefits of Virginia Workers Compensation Claims Compared to Civil Lawsuits


There are four distinct reasons why filing a workers compensation claim may be a better idea than filing a personal injury lawsuit against a third-party. These are:


  • Contributory negligence and assumption of the risk do not bar recovery. An injured employee can receive workers compensation benefits even if his or her negligence caused the injuries. This is not true in personal injury lawsuits.





Disadvantage of Workers Compensation Claims Compared to Personal Injury Lawsuits


The main advantage of a personal injury lawsuit over a workers compensation claim is that a civil suit brings the possibility of a greater monetary recovery. This is because an injury victim can receive compensation for pain and suffering, loss of earning capacity, future wage loss greater than 500 weeks, and punitive damages in a third-party action in Virginia.


Practical Considerations in Pursing Both a Virginia Workers Compensation Claim and Third-Party Personal Injury Lawsuit in Civil Court


When in doubt an injured person’s attorney should pursue compensation and damages under the Workers Compensation Act and at law. This means filing a workers comp claim and a third-party personal injury lawsuit at the same time to avoid the possibility that the injured person’s rights are barred by the applicable statute of limitations. The attorney can control which claim is litigated first by either asking the Workers Compensation Commission to not docket the claim for hearing (known as filing a protective claim) or by waiting to serve the personal injury complaint on the defendants.


Of course, the employer and its workers compensation insurance company may try to speed up the workers compensation process by asking for a hearing, which they are allowed to do, or by offering award agreement forms. Why would the employer accept the workers comp claim voluntarily? To avoid the possibility of you filing a civil suit and recovering greater damages in the form of pain and suffering, especially if you have a potential wrongful death lawsuit. This is a strategic choice that some employers and insurers make to protect their bottom line. Make sure you discuss the affect that entering into a workers compensation award may have on your personal injury lawsuit.


When weighing the different legal options, remember that employees with personal injury actions against employers and negligent parties are in a strong position. Under Virginia Code Sections 65.2-706.1 and 8.01-420.5, as well as the Court of Appeals decision in Richfood, Inc. v. Ragsdale, 26 Va. App. 21, 492 S.E.2d 836 (1997), employers cannot take inconsistent positions in workers comp claims and civil suits. A decision from the Workers Compensation Commission or circuit court that a person is not an employee applies to both forums. So if the Commission finds that you are not an employee, the employer is barred from arguing that you are an employee in your personal injury lawsuit so that the action gets thrown out.


Sample Cases Involving Personal Injury Lawsuits and Workers Compensation Claims in Virginia


Kilmer v. Ryder Integrated Logistics, Inc., 82 F. Supp. 2d 568: In this case the plaintiff, who worked for a tire company, was hurt while helping a truck company employee unload tires. The plaintiff filed a personal injury lawsuit against the truck company, but the court found the claim was barred because the plaintiff was directing the truck company employee at the time he was hurt and the conduct was considered part of the plaintiff’s employer’s trade, business, or occupation. This case shows that the workers compensation exclusivity bar may apply to personal injury claims against a third-party if the third-party’s line of work is similar to the injured employee’s line of work.


Smith v. Kirk, 54 Va. Cir. 71 (Richmond 2000): In this case the plaintiff was hurt while unloading a truck. He filed a personal injury action against the truck driver and the trucking company that employed the driver. The court found that the personal injury claim was not barred under the Workers Compensation Act’s exclusivity bar.


Cunningham v. Roanoke Reg’l Airport Comm’n, 2006 Va. Cir. LEXIS 273 (Roanoke County Dec. 28, 2006): In this case the plaintiff was a driver for a transportation service who sued the Roanoke Regional Airport Commission. The Airport Commission argued that it was the statutory employer and that the personal injury lawsuit was barred. The court, however, found that the law establishing the Airport Commission did not give it the authority to operate a ground transportation facility. As such the Airport Commission could not subcontract with the injured driver’s employer and was not the injured driver’s statutory employer. The personal injury action could proceed.


As you can see, court decisions allowing a personal injury lawsuit to go forward against a third party or barring the personal injury lawsuit and limiting the injured person’s remedy to the Workers Compensation Act are complicated. They often turn on specific facts and require extensive investigation, development, and legal research.


Need an Attorney Who Can Pursue Your Workers Comp Claim and Third-Party Civil Action for Personal Injuries at the Same Time?


Having a good strategy is important when trying to maximize the compensation and medical benefits you receive after suffering a work injury caused by a third party. Do not try to navigate this maze on your own. Contact Corey Pollard for a free legal consultation. If your injuries are so severe that you’re unable to return to work, we can also serve as your disability lawyer and help you get approved for Social Security Disability Insurance (SSDI) benefits.