Workers' compensation is designed as a trade off between the interests of employers and injured employees.  In most circumstances, employers receive immunity from lawsuits by workers who are injured on the job or the survivors of those who are killed in work related events.  In return, injured workers are not forced into an unpredictable system of lawsuits with long waiting periods for damages and no guarantee of compensation.  They receive medical expenses and compensation for lost wages, or when work-related injuries or disease lead to death.  Benefits are guaranteed to the worker's survivors.

For the most part, the system works just as it was designed. There are a few exceptions, however, when courts allow workers who have on-the-job injuries or occupational disease, or their survivors, to pierce the employer's immunity and file a personal injury lawsuit.  As workers' compensation is a matter of state law, the rules as to when courts permit these lawsuits will vary somewhat from state to state.  Most importantly, they will be based on the unique facts of each case.  Nevertheless, there are general circumstances that make courts more likely to find in favor of an injured worker, or his or her survivors.

The key issue the courts usually consider is whether the employer intentionally created a situation that would be, in the words of one court, "substantially certain" to lead to a worker's injury or death.  On this basis, an Oregon court held that an employer could lose its workers' comp immunity by ordering an employee to perform a task that the employer knows is unreasonably dangerous, such as doing work without safety equipment, and thus is substantially certain to cause injury.

If evidence exists verifying the employer knew it was substantially certain employees could be seriously injured or killed, and then deliberately concealed the information from them, the courts are even more likely to permit an injured employee to sue.  This is what happened with companies that manufactured or installed asbestos.  Ordinarily, workers' compensation would have been the employees' exclusive remedy for lung disease and cancer caused by working with asbestos.  But in some instances, workers were able to show that the employers had known about the diseases and nevertheless told them there was little risk or need for safety precautions.

In another example, a Florida employer occasionally and deliberately shut off a workplace ventilation system and misrepresented the potential harm of toxic fumes and the need for safety equipment.  The court ruled that due to the employer's deliberate misrepresentation, injured employees were not limited to workers' compensation as their exclusive remedy, but could also sue.  Similarly, a New Jersey court held that an employer lost the exclusive remedy protection of workers' comp when it removed the warning labels and safety devices from machinery. 

Liability for concealment of risks can even be based on an employee's inability to read or understand warning labels or safety instructions, according to a South Dakota court.  The court's ruling held that if the employer does not clearly explain the hazards and safety precautions so that the employees understand them, it might lose workers' comp immunity. 

In certain cases, the employer can protect itself if it can show the worker fully understood the risks and decided to do the job anyway.  In one case, a widow sued the employer after her spouse fell to his death on a construction job, arguing that the numerous citations the employer had received for failure to provide guard rails showed that the employer should be liable for her husband's death.  But a Florida appeals court rejected her claim, finding that the danger of working on an elevated construction site without a guardrail was, or should have been, obvious to an employee.  Therefore, the deceased had chosen to accept the risk and the widow's exclusive remedy was workers' compensation benefits.

However, not all risks are obvious, and where they are not, courts are likely to find that the employer has a better understanding of the risks than the employee.  

There is one other situation that almost always exposes the employer to potential lawsuits by injured employees:  failure to maintain workers' compensation insurance.  If the employer doesn't have insurance, injured workers or the survivors of those who die from job-related injuries have no barrier to filing a lawsuit, which can be a very costly proposition.

We can help you identify and manage potential risks, which may not be covered by your workers' comp policy.  Give us a call today for more information.