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