Episode 83: Calloway County workers’ compensation attorney Jeff Roberts discusses a question that comes up from time to time, “Can I sue my employer for a workplace injury?”  Normally, if you’re injured on the job, you’ll file for workers’ compensation benefits.  However, there may be situations in which you have a reason to pursue a lawsuit against your employer. 

Worker’s Compensation Doesn’t Require Negligence

Jeff has practiced Kentucky workers’ compensation law for over 32 years.  He explains that it’s basically a “no-fault” scenario.  You do not have to prove negligence to be able to file for and to receive workers’ comp benefits.

If you receive a work-related injury, you’re eligible for benefits.  However, in most cases, those are the only remedies to which you’ll be entitled.  This is generally the case even if your employer is negligent or grossly negligent. 

Many years ago, the worker’s compensation system didn’t exist.  When a worker suffered a workplace injury, there were no benefits, so the worker would have to sue his/her employer for damages related to the injury.  This could take a very long time and the worker had no guarantee he/she would be successful. Some workers were successful in proving negligence and that created a significant, financial risk to companies.  However, eventually business and labor came together to agree on a system that would provide benefits to an injured worker, who then would give up the right to sue the employer.  This is referred to as, “the grand bargain.”  This became a foundation of today’s workers’ comp system.

The inability to sue an employer beyond the limits of the workers’ compensation system is referred to as the “exclusive remedy” provision in the law.

Can I Sue if I Was Injured by a Co-Worker?

If a co-worker’s negligence resulted in your workplace injury, the exclusive remedy provision generally applies, because the co-worker is deemed to be an agent of the company.  Jeff uses the example of two employees riding in a vehicle.  The first employee runs a red light and collides with another vehicle.  The second employee can’t sue the co-worker for his/her injuries. 

Note:  If the other vehicle was at-fault, this changes the scenario.  The injured employee can file for workers’ compensation, but he/she can also file a personal injury claim against the negligent third-party who caused the accident.

Exceptions to the Exclusive Remedy Provision

Jeff discusses that there are some exceptions that would, in fact, allow the injured employee to sue his/her employer, with regard to Kentucky’s Workers’ Compensation Act.

#1 If the Employer Fails to Secure Workers’ Compensation Coverage

Jeff focused on this in Episode 33.  The medical expenses for a work-related injury and a portion of the lost wages are being paid as they are being incurred, in a typical workers’ comp situation.

If your employer doesn’t have workers’ compensation coverage, there’s no insurance policy in place to cover those expenses.  This violation by the employer waives the exclusive remedy protection.  Generally speaking, if a company has even 1 employee, that company is required to have workers’ compensation insurance.  When they violate that aspect of the law, they open themselves up to litigation.

As Jeff explained in Episode 33, the injured employee can still receive benefits for medical expenses and lost wages via Kentucky’s Uninsured Employer’s Fund.

Misclassification of Employees

Employers may attempt to avoid paying for workers’ compensation insurance by intentionally misclassifying employees as independent contractors.  This would also be a way for the employer to try to avoid paying taxes related to those employees.

If you work for a sub-contractor on a job and you get injured, you may be able to pursue your workers’ compensation benefits by filing against the general contractor’s policy.  The injured sub-contractor employee could still file a personal injury claim against the sub-contractor if they didn’t have workers’ comp insurance.  That injured sub-contractor could also file a personal injury claim against another sub-contractor (i.e. a plumber who gets injured by an electrician or something the electrician did).

Jeff mentions another scenario involving a company not based in Kentucky, but has employees working in Kentucky. If one of those employees gets injured, the company is still liable and may have forfeited its exclusive remedy protection if they don’t have specific coverage in Kentucky.

#2 Third-Party Claims

A third-party claim arises when a third-party causes your injury, while you are engaged in work-related activities.  You’d still have your workers’ compensation claim, but as Jeff mentioned earlier, you could still file a personal injury claim against the negligent third-party, because that party isn’t your employer or a co-worker.

Third-party claims would also include pain and suffering, which is not allowed as part of the workers’ compensation claim.  Jeff comments that the third-party claim often is larger than what’s recovered through the workers’ compensation claim.

Jeff Roberts can handle both the Kentucky workers’ compensation claim and any third-party, personal injury claim.  Not every injury law firm handles workers’ comp and personal injury.  Jeff has done that for over 32 years.  In Episode 56, Jeff explains why there are no upfront costs to hiring him.  He explains how he handles the contingency fee agreement.

#3 Intent to Injure

This is another scenario by which an injured employee is able to sue his/her employer.  If it’s proven the employer had an intent to injury, the company forfeits its exclusive remedy protection. 

This is a very limited exception.  Jeff explains that the courts have interpreted this exception extremely narrowly.  Surprisingly, even if it can be proven the company had an intent to violate an OSHA regulation, it does not fall under this exception.  Jeff describes a workplace fatality case that the Kentucky Supreme Court ruled the OSHA violation did not get around the exclusive remedy provision, even though the company knew it was violating the regulation.  The Court found the employer did not have “specific intent” to injury the employee.  Jeff devoted workplace fatalities in Episode 36. 

What Do Other Clients Think About Jeff?

We always encourage listeners to read the Google Reviews Jeff Roberts has received from many of his clients.  A 5-Star rating and the comments are earned recognition and demonstrate Jeff’s commitment to his clients.  As a solo attorney, he has more Google Reviews than some firms with multiple attorneys.  Jeff shares the credit with his staff at the Roberts Law Office.  Successfully representing a victim of an automobile accident is a team effort.  It’s why Jeff likes to say his firm offers small town service with big city results.

Jeff Roberts Represents Injured Clients Throughout Kentucky

With offices located in Calloway County and now Christian County, Jeff has a history of representing personal injury clients, workers’ compensation clients and social security disability clients across the state.  He’s represented clients from Paducah, Bowling Green, Louisville, Covington, Whitesville and many other Kentucky locations.  He’s not just a Western Kentucky injury attorney. 

We hope you found this episode insightful and helpful.  Thank you for listening!                                                                                                     

Is It Time to Speak with an Attorney about Your Workers’ Compensation Claim?

The office phone number is (270) 753-0053 or toll free at 800-844-5108.  For more information, visit www.JeffRobertsLaw.com. This podcast is meant to provide information and is not legal advice.  Jeff’s principal office is located at 509 Main Street, Murray, Kentucky.  Co-host Jim Ray is a non-attorney spokesperson.  This is an advertisement.