Numerous shoppers, from time to time following many years of litigating a workers’ payment declare, get to the frustration level the place they come to a decision: “I guess I am going to have to sue my employer.” It is at this stage that the harsh fact must be unveiled (or reiterated). In most conditions, if you have a workers’ payment claim, you simply cannot sue your employer, even if it was negligent, for the identical injury. This article will test to clarify the logic behind the exclusion typically recognised as “the special cure provision”.
Right before workers compensation statutes came into existence, the very same guidelines applied to get the job done similar accidents as any other civil assert. If a person was hurt at do the job and the employer was negligent, a civil accommodate could be brought in opposition to the employer for damages. Even so, in numerous conditions, the wounded employee would be out of do the job and not able to feed his household or receive health care cure. If the scenario was intricate, legal professional service fees, court docket expenditures and skilled witness expenses could not be paid. The employer had a distinctive benefit. Even if a favorable verdict was obtained, it took months and the losing aspect was entitled to attraction.
To even the playing discipline, beginning in the 1910s, lawmakers started developing the “workmen’s payment” rules on which the present-day legislation are centered. The idea was relatively very simple: build a process where by an injured employee gained payment and clinical cure where by he or she was hurt in an incident which arose out of and in the course of work. Gains had been paid speedily and no matter of fault. If the situation was disputed, it was taken care of administratively, normally with no fit staying filed and with no a jury trial.
On the floor, these legislation seem to favor workforce. On the other hand, as time would convey to, the benefit to businesses was important. Contingency service fees and non-financial damages, these kinds of as ache and suffering, had been in their infancy in the 1920s. In the heyday of the pre tort reform era, a person could recover significantly a lot more in a particular damage situation than they could in a workers’ compensation claim, often 10 occasions as considerably or far more. Thus, in a scenario where an specific was killed on the job as a result of his employer’s carelessness, positive aspects to his dependents below staff payment are generally constrained. If he or she had no dependents, in a lot of states the employer would only have to pay for health-related remedy ahead of demise. The very same circumstances in a lawsuit would most likely consequence in a six or 7 determine settlement or verdict with the possible for punitive damages.
Also, as an incentive to industry, workers’ rewards beneath the act would be constrained. Typically, an injured employee is entitled to two-thirds of his or her “common weekly wage” with a cap in put in quite a few jurisdictions. In Ga, for instance, as of June 30, 1990, the most benefit an hurt worker was entitled to was $175.00 for every week, regardless of his or her injuries or pre-injuries wages. Even in 2006, after important increases in the past fifteen decades, the highest fee in Georgia is fewer than $24,000 per yr. (O.C.G.A 34-9-261) The median house revenue all through the similar interval of time was $48,388.
In some jurisdictions, there are exceptions to the exclusive remedy provision. If the employer is guilty of gross negligence or willful misconduct, an injured worker may be able to obtain benefits over and above those provided by workers’ compensation. For example, in Massachusetts, an employee’s compensation is doubled in these types of cases with the employer paying the additional benefits. At lease one jurisdiction allows a choice of remedies where the employer is guilty of gross or willful negligence.
There are other exceptions but they are rare. In certain contract cases, an employer may be brought in as a result of an indemnification agreement with a third party. Also, if the employer is acting in a different capacity than employer, the exclusive remedy bar may not apply. Another example is in a loaned servant situation such as an employee working for a temp service. However, most states treat the both the direct employer and the company that pays the leasing company as “employer” for workers’ compensation purposes.
The level of frustration is tremendous for both employees and attorneys in the area of exclusive remedy. It does not seem right that an employer can be negligent and be immune from suit. It is more unfair that an employer can cause injury due to gross or willful misconduct with no consequences in most jurisdictions. The frustration intensifies when you learn you cannot sue a company who is not your employer – the “statutory employer” concept but that discussion is for another article.
When your lawyer, family or a friend tells you “You cannot sue your employer”, it may not seem just or fair. Sadly, however, it is probably correct.