Spring 2019

Nuances of Virginia Workers’ Compensation Exclusivity of Remedy

The Virginia legislature established the Workers’ Compensation Act (the “Act”) and the Workers’ Compensation Commission in the early 1900s to address work-related injuries and to provide employees injured at work a quicker remedy than suing their employer (which previously was the sole option).  Workers’ compensation is essentially employer-funded insurance to provide an injured employee medical benefits, wage replacement, and even cash payments for permanent impairment—if the employee is hurt or rendered sick during the course of his employment.  The Act requires Virginia employers who have two or more part-time or full-time employees to provide workers’ compensation coverage for their injured employees’ medical treatment, lost wages, and permanent partial disability.  It is important to note that if a business hires subcontractors to perform the same trade, business or occupation, or to fulfill a contract of the business, the subcontractor’s employees are included in determining the total number of the employer’s two or more employees.

While workers’ compensation helps injured employees get medical care and wage replacement more quickly than they would by pursuing litigation, there is a benefit to employers as well.  An employer who provides the coverage is secure in the knowledge that there aren’t any non-economic damages like pain and suffering, loss of consortium, or loss of enjoyment of life, which can increase claim costs significantly, in workers’ compensation claims.  Also, workers’ compensation is an injured employee’s exclusive remedy for recovering damages related to work-related injury in most situations.  There are two exceptions.  First, if an employee is injured at work, and their employer should have had workers’ compensation coverage but did not, the employee is permitted to pursue a civil action.  Second, if an employee is sexually assaulted at work, he/she can pursue a civil action—whether his/her attacker is his/her employer or a co-worker.

This creates a “bar” on civil litigation for employees who do not fall into these two exceptions.  If an employee files a suit against an employer for a work-related injury and that employer provides worker’s compensation coverage, the employee’s suit should be thrown out.  Interestingly, workers’ compensation is also the exclusive remedy for any other person who was performing work similar to the employer’s trade, business, or occupation for the employer at the time of the workplace accident.  For example, if a roofing contractor hires a subcontractor to do roofing work and the subcontractor is injured on the job, the roofing contractor must provide him with coverage and the subcontractor must turn to workers’ compensation policy for his work-related injury as if the subcontractor was the contractor’s employee.

This also means that a contractor’s employee may not file a civil suit against a subcontractor for an injury related to the subcontractor’s work on the job—if the subcontractor was performing work similar to the employer’s trade, business, or occupation for the employer at the time of the workplace accident.  If the subcontractor was not a “stranger to the business” then the injured employee’s only remedy is workers’ compensation.  On the other hand, if the employee was injured by a subcontractor who was not performing work similar to the employer’s trade, business, or occupation for the employer at the time of the workplace accident, then the employee may file a civil suit against the subcontractor.  For example, a Ford (car manufacturer) employee can sue the manufacturer of a car door when the employee is injured by one of the manufacturer’s doors while the employee is engaged in the regular scope of his work manufacturing cars (because the door manufacturer is a “stranger to the business” of car manufacturing).

In sum, an employee involved in a work-related injury in Virginia must almost always turn to workers’ compensation for his/her damages.  Civil suits for work-related injuries filed against employers who provide workers’ compensation must be analyzed carefully to determine if they are barred under the Worker’s Compensation Act.

For more information about this article, please contact  Elena G. Patarinski at 804.932.1996 or