Workers’ Compensation and Personal Injury

By: Matthew Crist – 24 January 2016

When a covered worker is injured, she is entitled to be compensated under Virginia Code § 65.2-100 et seq. Virginia requires that employers who meet certain criteria maintain coverage under the workers’ compensation act. Under that act, when a worker is injured by her employer, she is not able to sue her employer beyond receiving compensation under the act; however, what happens when she is injured by someone other than her employer?

The initial workers’s compensation claim to the commission is a rather formulaic process that is highly regulated by the code. Whether the injured worker can sue to receive additional compensation from someone other than under the workers’ compensation act is a more complex matter; as a default, an injured worker cannot receive additional compensation. This is known as the exclusive remedy under the workers’ compensation act and it works to bar any other right that may exist against the employer.

The core purpose of the workers’ compensation act is two-fold:

1) to ensure that injured workers receive at least some compensation and care for their injuries;
2) and to limit the effect of lawsuits on employers.

To ensure that employers do not evade their responsibilities to their employees under the act, it contains a concept known as the Statutory Employer provision. This provision operates to see through an employer’s attempt to use independent contractors so they will not be forced to pay for the injuries that workers suffer on the job. Therefore, whenever an employer uses an independent contractor to perform services in its own trade, business or occupation, the act will short circuit the employer’s ruse and will force the employer to pay as prescribed in the act.

The inverse of this provision is that a contractor who is injured on the job when he is providing services in the trade, business or occupation of his employer or general contractor, then his normal rights to recovery are barred by the statute. That is, despite the lack of a typical employee-employer relationship, the statute will see through the relationship and call the general contractor the statutory employer and the subcontractor a statutory employee and the statutory employee’s only right to recovery is as provided in the act.

The exception is the important part.

An employee who is injured by a party other than her employer is permitted to sue that other party even if she has received workers’ compensation. More accurately, the exclusive remedy provision of the act does not bar suing a party who is liable for the injury to the worker and is not the worker’s employer, statutory or actually. Virginia Code § 65.2-309 acknowledges this reality of the act.

The importance to an injured worker is that if she has been injured on the job, but is in a unique relationship where she was not injured by her employer, she may have rights to sue the person or company who injured her.

This unique relationship tends to arise when people in the service industries are contracted to provide services to others outside of their own industry. Some examples are:

  • A nurse providing home healthcare services and injured by the homeowner.
  • An employee working for a large auto manufacturer who is injured by a contractor hired to install a garage door.
  • An electrician providing services on a building owned by a third party and is injured by that third party’s negligence.
  • In each of these three cases, the injured worker was able to recover compensation in addition to what they received under the workers’ compensation act. With each new factual scenario comes a very complex evaluation of who caused the injury, the trade, business or occupation of the liable party, and the value of pursuing the additional recovery.

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