My employer was negligent, can I sue him/her?

We often get the question, “Can I sue my employer for negligence?” Unfortunately, if you are injured in the course of employment, the answer almost always, “No.” Vermont’s Employers’ Liability and Workers’ Compensation Act makes workers’ compensation the exclusive remedy for employees injured in the course of employment. In some ways this is a good thing. It means that the employee gets benefits for an injury regardless of how the injury occurred, and those benefits are not dependent on whether or not the employer was negligent in any way. On the other hand, it also means that if the employer was negligent, it can’t be sued for its negligence.

The Vermont Supreme Court has interpreted this immunity broadly. Basically, it has decided that any entity that falls within the Workers’ Compensation Act’s statutory definition of “employer” enjoys immunity from tort actions, including those based on negligence. Because of this, the Vermont Supreme Court has found many entities to be “statutory employers” — and therefore immune — that might not seem like employers at all. The employees of subcontractors lose out because of this, as they cannot sue a general contractor for the general contractor’s negligence, even though there is no direct employment relationship between the two. On the other hand, the fact that a general contractor is a statutory employer can be useful for workers at time. If the worker were employed by a subcontractor to do the general contractor’s work, but the subcontractor does not maintain workers’ compensation insurance, the worker could claim workers’ compensation benefits from the general contractor because it is an employer under the Act.

There are only two exceptions to the exclusive remedy rule written into the statute. The first is if the employer does not maintain workers’ compensation insurance to cover its employees’ work-place injuries. In that case, the employee can either bring a claim for workers’ compensation benefits or sue the employer for negligence. If the employee sues for negligence, the employer is barred from raising most of its usual defenses. The second is for the gross negligence or willful misconduct of a safety committee.  However, in 2008, the Vermont Supreme Court effectively wrote this second exception out of the Act. So, as long as your employer has workers’ compensation insurance, the chances are you will not be able to sue it for negligence.

What We Do – Article Written for the IBEW Local 2326

While love holds a family together, work is what makes a family go. It puts food on the table. It pays the mortgage. It keeps the electricity running. It sends us to the beach for a week in the summer and lays presents under the Christmas tree. But what happens when you can’t work?

Much of our focus at Jarvis & Modun involves securing compensation or entitlement to benefits for a client who cannot work, either temporarily or permanently, because of an injury or disease. Our society has created several types of laws to address these situations. They include workers’ compensation; tort law; Social Security disability and Supplemental Security Income; and private short-term and long-term disability insurance. For veterans, there are disability benefits for service-connected medical impairments and disability pensions. Except for veterans’ claims, Jarvis & Modun practices in all these areas of law.

Workers’ Compensation is a no-fault system of compensation administered by the states. It was born out of a “grand compromise” between businesses and labor in the early twentieth century. As part of the compromise, business leaders agreed that they would pay certain, well-defined benefits to any worker who was injured in the course of employment. In exchange, workers relinquished their right to sue employers if their injuries were caused by their employer’s negligence. Most states – with some notable exceptions – have a workers’ compensation system with laws and benefits that vary from state to state.  But usually, employers must pay for medical treatment. Employees who cannot work while recovering from an injury are usually entitled to temporary disability benefits. Employees that cannot return to their past employment may be entitled to vocational rehabilitation. Finally, permanently injured employees are usually entitled to compensation for permanent impairment.

Workers’ compensation does not cover intangible damages like pain and suffering, loss of enjoyment, or loss of consortium. These types of damages are the hallmarks of tort law. Tort claims typically revolve around the idea of negligence, and require a person to show that another is at fault for causing an injury. This may occur, for example, when a person causes an automobile collision because he or she texted while driving. It may occur when a business does not build its facilities up to code, thereby resulting in someone’s injury. Or it may even happen when a doctor does not do what a reasonable doctor should have done in treating a patient. Unlike other areas of law, tort law is expansive in what a plaintiff can claim for damages in a recovery. This is because the guiding principle of tort law is to make the plaintiff “whole” again. Thus, a recovery may include payments for medical treatment, lost earnings, lost earning capacity, the value of damaged property, as well as the types of intangible losses mentioned above.

Tort law and Workers’ Compensation are not intended to cover everyone who gets hurt. Sometimes a person is neither hurt at work nor hurt because of someone else’s fault. There are also limits to what these laws can achieve. Even if a person is hurt because of someone else’s fault, the person at fault may not have enough insurance or assets to pay for all the damages. Because of these shortcomings, America has also created a safety net of benefit programs designed to keep people out of poverty if they cannot work. The centerpiece of this safety net is Social Security Disability and Supplemental Security Income.

Social Security Disability is part of the public insurance program that includes retirement and survivor benefits. One becomes eligible to draw disability benefits by earning work credits. People who have earned enough credits before becoming disabled can draw the Social Security Disability Insurance Benefits (or SSDI). If one has not earned enough work credits to qualify for SSDI, then Supplemental Security Income (or SSI) is the back-up program. It pays a fixed benefit subject to limitations of family income and assets. To qualify for either program, a person must meet Social Security’s criteria for disability, which requires that a person be unable to engage in substantial gainful activity for a minimum of twelve months because of mental or physical impairment or a combination of both. Age, education, and vocational history also factor in determining whether a person is disabled.

Workers’ Compensation, tort laws, Social Security Disability Insurance, and Supplemental Security Income apply to everyone. Other disability benefits apply to smaller segments of society, such as veteran disability benefits and disability pensions. The Department of Veterans’ Affairs administers these programs, and a veteran can apply for those benefits through a local VA office.

Another limited area of disability benefits includes short-term and long-term disability policies. Often these benefits are part of an employee benefit program provided by an employer. Sometimes a person will buy this insurance for themselves. If the benefits are part of an employee-benefits program, the administration of the benefits are covered by a federal law known as “ERISA.” No one standard applies for these types of policies. ERISA gives a great deal of deference to businesses and insurance companies to define what these benefits include and the circumstances under which they will be paid. The insurance policy controls what is paid, and so it is vitally important to get a complete copy of the policy when claiming either short-term or long-term disability benefits.

Jarvis & Modun practices in most of the major areas of disability and injury law described above. The one exception is veterans’ claims. We also offer a free consultation to anyone who wants to understand their rights and explore whether they need representation in making a claim. If you would like a consultation, please call us at (802) 540-1030 or toll-free at (844) 299-1011.