| Many clients, sometimes after years of litigating a | | | | punitive damages. |
| workers' compensation claim, get to the | | | | Also, as an incentive to industry, workers' benefits |
| frustration point where they decide: "I guess I'm | | | | under the act would be limited. Generally, an |
| going to have to sue my employer." It is at this | | | | injured worker is entitled to two-thirds of his or |
| point that the harsh reality must be revealed (or | | | | her "average weekly wage" with a cap in place in |
| reiterated). In most cases, if you have a workers' | | | | many jurisdictions. In Georgia, for example, as of |
| compensation claim, you cannot sue your | | | | June 30, 1990, the maximum benefit an injured |
| employer, even if it was negligent, for the same | | | | worker was entitled to was $175.00 per week, |
| injury. This article will try to explain the logic | | | | regardless of his or her injury or pre-injury wages. |
| behind the exclusion commonly known as "the | | | | Even in 2006, after significant increases in the last |
| exclusive remedy provision". | | | | fifteen years, the maximum rate in Georgia is less |
| Before workers compensation statutes came into | | | | than $24,000 per year. (O.C.G.A 34-9-261) The |
| existence, the same rules applied to work related | | | | median household income during the same period |
| accidents as any other civil claim. If one was | | | | of time was $48,388. |
| injured at work and the employer was negligent, | | | | ( |
| a civil suit could be brought against the employer | | | | In some jurisdictions, there are exceptions to the |
| for damages. However, in many cases, the | | | | exclusive remedy provision. If the employer is |
| injured worker would be out of work and unable | | | | guilty of gross negligence or willful misconduct, an |
| to feed his family or obtain medical treatment. If | | | | injured worker may be able to obtain benefits |
| the case was complicated, attorney fees, court | | | | over and above those provided by workers' |
| costs and expert witness fees could not be paid. | | | | compensation. For example, in Massachusetts, an |
| The employer had a distinct advantage. Even if a | | | | employee's compensation is doubled in these |
| favorable verdict was obtained, it took months | | | | types of cases with the employer paying the |
| and the losing side was entitled to appeal. | | | | additional benefits. At lease one jurisdiction allows |
| To even the playing field, beginning in the 1910s, | | | | a choice of remedies where the employer is guilty |
| lawmakers began creating the "workmen's | | | | of gross or willful negligence. |
| compensation" laws on which the current law are | | | | There are other exceptions but they are rare. In |
| based. The concept was fairly simple: create a | | | | certain contract cases, an employer may be |
| system where an injured employee received | | | | brought in as a result of an indemnification |
| compensation and medical treatment where he or | | | | agreement with a third party. Also, if the |
| she was injured in an incident which arose out of | | | | employer is acting in a different capacity than |
| and in the course of employment. Benefits were | | | | employer, the exclusive remedy bar may not |
| paid quickly and regardless of fault. If the case | | | | apply. Another example is in a loaned servant |
| was disputed, it was handled administratively, | | | | situation such as an employee working for a temp |
| generally without suit being filed and without a | | | | service. However, most states treat the both the |
| jury trial. | | | | direct employer and the company that pays the |
| On the surface, these laws seem to favor | | | | leasing company as "employer" for workers' |
| employees. However, as time would tell, the | | | | compensation purposes. |
| benefit to employers was significant. Contingency | | | | The level of frustration is tremendous for both |
| fees and non-economic damages, such as pain | | | | employees and attorneys in the area of exclusive |
| and suffering, were in their infancy in the 1920s. | | | | remedy. It does not seem right that an employer |
| In the heyday of the pre tort reform era, a | | | | can be negligent and be immune from suit. It is |
| person could recover much more in a personal | | | | more unfair that an employer can cause injury |
| injury case than they could in a workers' | | | | due to gross or willful misconduct with no |
| compensation claim, sometimes ten times as | | | | consequences in most jurisdictions. The frustration |
| much or more. Therefore, in a case where an | | | | intensifies when you learn you cannot sue a |
| individual was killed on the job as a result of his | | | | company who is not your employer - the |
| employer's negligence, benefits to his dependents | | | | "statutory employer" concept but that discussion |
| under workers compensation are generally limited. | | | | is for another article. |
| If he or she had no dependents, in many states | | | | When your lawyer, family or a friend tells you |
| the employer would only have to pay for medical | | | | "You cannot sue your employer", it may not |
| treatment before death. The same circumstances | | | | seem just or fair. Sadly, however, it is probably |
| in a lawsuit would likely result in a six or seven | | | | correct. |
| figure settlement or verdict with the potential for | | | | |