Workers’ Compensation and Negligence Cases

Work-related injuries occur in an endless and variety of ways. In those instances where injuries happen when an employee is in the course of his/her employment and the accident arises out of a risk of that employment, workers’ compensation benefits should be available to the injured worker. If the actual injuries themselves were “caused” by a defective product or the negligence of a third party, then the injured employee can collect both workers’ compensation benefits and recover money damages against the third party at the same time.

At first blush, Virginia law on this subject might seem like a double recovery, but it is not. In fact, under Virginia law (Virginia Code §65.2-309), the employer has a chance of getting back all, or some, of its money from the third party through a process called subrogation or lien recovery. The benefit for the employee is that often workers’ compensation benefits can be secured fairly rapidly, thereby avoiding a potentially devastating gap in income while the third-party case is being sorted out.

The best way to understand how this all works is by looking at some actual case examples where the injured person was able to benefit by both obtaining workers’ compensation benefits and by ultimately securing a substantial recovery against the truly responsible third party in a separate action.

But first, let’s look at what the injured employee is often entitled to under the Workers’ Compensation Act for his or her injuries:

• Wage replacement of approximately 2/3 of the average weekly wage for each week/day missed from work due to the injuries;
• Payment of all reasonable and necessary medical expenses related to the injury;
• Mileage to and from healthcare providers;
• Statutory amounts for the permanent loss or use of a particular body part – such as a leg, arm, eye, finger, etc.; and
• Vocational rehabilitation services.

In addition to the above, in a negligence case against the wrongdoer, the injured person can get everything available under workers’ compensation benefits plus the following:

• Any bodily injuries sustained and their effect on health according to their degree and probable duration;
• Any physical pain and mental anguish suffered in the past and any that may be reasonably expected to suffer in the future;
• Any inconvenience caused in the past and any that probably will be caused in the future;
• Any medical expenses incurred in the past;
• Any earnings lost because she was unable to work at her calling; and
• Any loss of earning and lessening of earning capacity, or either, that may reasonably be expected to sustain in the future.

When the injured person makes a claim against the liable “third party” who is ultimately responsible for causing the injuries, these same damages become part of that litigation as well. When the injured employee recovers against the responsible third party, that is when there is a chance that some of the money will be repaid to the employer/insurance carrier. It is tantamount to an interest-free loan for however long it takes to recover against the negligent party.

As a first example, consider this recent case – Our client was directed by his employer to drive the company vehicle to a job site to do some work. On his way to the job site, he was catastrophically injured when another driver failed to stop at a stop light and t-boned him in the intersection. His injuries included broken bones and psychological problems – all of which prevented him from returning to work for an extended period of time. Fortunately, his employer simply continued his regular paycheck for a couple of months in hopes that he would make a rapid return. Unfortunately, the injuries were too devastating and required surgeries which compounded his inability to work. At that point, he was able to obtain workers’ compensation benefits for his lost wages and medical care.

Next, we made a claim against the negligent driver who ran the stop light who, as it turned out, was also “on the clock” at the time of the crash. We were ultimately able to recover against both the negligent driver and his company. At that point, we paid back a portion of the workers’ compensation benefits, and our injured client was paid for his devastating injuries, loss of income, etc.

Another example of how the system works is a case where our client was employed by a roofing company. He was working on a large building which had a metal roof. At the time, he and some co-workers were using a roofing machine that helped secure the seams of the metal sheets. Our client was working below the machine when it suddenly failed and began rolling down the roof, striking our client and knocking him off the roof onto the ground where he fractured his back and leg. Because he was in the course of his work at the time and his injuries arose out of his job duties, workers’ compensation immediately began paying his benefits. He was then able to successfully pursue a product liability case against the manufacturer of the roof seaming machine for breach of warranty and negligent design. His employer was very helpful in our pursuit of the case and provided substantial help in the litigation against the manufacturer for two reasons – First, they wanted to help their very badly injured worker; and second, they wanted to recover some of the benefits they had voluntarily paid while he was waiting to pursue the third party case.

In summary, the United States system of civil justice is not perfect. However, it is an excellent system that provides safety nets for injured workers in the form of workers’ compensation benefits and potential third-party liability cases. The workers’ compensation benefits can often mean the difference between paying one’s rent and continuing to afford groceries while the third-party case can come closer to truly fully compensating the injured person for the direct and circumstantial damages which can be caused by horrific “on-the-job” injury.

For further information, feel free to reach out to anyone at our firm who can help you navigate these incredibly beneficial rights.