Workplace Injuries in Virginia

Not a week goes by where I don't get at least one phone call from a caller asking if he or she can sue their employer for their workplace injury. In Virginia, the answer is still no. If you are hurt on the job, even if your employer failed to give you safe equipment or failed to provide a safe workplace, your exclusive remedy is filing for workers' compensation benefits, which from my experience, are woefully inadequate.

There are several scenarios that allow you to file a workers' compensation claim and maintain a separate lawsuit, but not against your employer. For instance, if you are on the job, and involved in an automobile crash that is not your fault, you can file a lawsuit or claim (also called a third party claim) against the at fault party and file a claim for workers' compensation benefits. The bad news is that your workers' compensation insurance carrier maintains a lien against any recovery you may get, and you have to get approval of any settlement of your third party claim from the workers' compensation carrier. The comp carrier is required to pay you for its pro rata share of your attorneys costs and expenses, effectively discounting or reducing its lien. Another example would be if doctors committed malpractice in treating you for your injuries. In that instance, you could file your workers' compensation claim and maintain a malpractice claim against those physicians and/or the hospital. Again comp still has a lien, and still must approve any settlement. Frequently, the injuries to the worker are caused by a defective or dangerous piece of equipment. In that scenario, the worker or his family can file for workers' compensation benefits and file a lawsuit against the product manufacturer and/or seller. Again, comp still has a lien, and still must approve the settlement.

Lastly, in some instances, the worker may have been injured by another worker on the job site, who was not working for the injured workers' employer. In my opinion, this is one of the most complicated and convoluted areas of Virginia law. If the negligent worker is deemed an "other party" then he can be sued by the plaintiff. However, there are several "tests" used by the Virginia Supreme Court to determine if an employee is an other party and/or to see if the negligent worker's conduct was not part of the trade, business or occupation of the injured worker. There are frequent battles over which test applies to the workplace scenario at hand. Many times it seems as if each side can find a prior legal case in support of their theory, leaving it as a coin toss for the judge to decide. It is very important to make sure that you have a lawyer experienced in this area of the law. All too often I have had a person call my office advising me that their attorney had told them to settle their workers' compensation claim, because they had a such a good third party claim, when the victim had only to learn later that their third party claim was not very good and was in fact dismissed by the trial Court as barred. The end result was that the worker settled his workers' compensation claim too cheaply, banking on a third party claim that was anything but a sure thing.