Worker’s comp bar not always impossible barrier

If your employee is hurt at work, he or she typically can’t bring a personal injury suit against your company in court. That’s because of the “worker’s comp bar.” In other words, the employee needs to file a claim in the worker’s compensation system, where the payments obtained may be less than the damages that might have been recovered from a jury or in a settlement.

But don’t assume you’re safe from all suits for workplace injuries, because there are exceptions in which workers can file suit.

For example, in most states, workers can file a lawsuit if their employer intentionally caused their injuries. This happened recently in Michigan, when an electrical worker was hurt while on an elevated aerial lift transferring live power lines from an old wooden pole to a new one. After a supervisor left the job site, the worker made contact with the electrical distribution line and was electrified, suffering severe permanent injuries.

The worker, Kyle Scheuneman, filed a personal injury claim against his employer, saying the company knowingly failed to provide him with necessary safety training and equipment, that the supervisor left without informing him the work was being done improperly and that the company had a history of similar violations.

A trial judge dismissed the case, but the Michigan Court of Appeals reversed, finding that putting the worker in a situation where injury was inevitable was equivalent enough to intentional harm for the worker’s claim to move forward.

Most states also let workers sue a third party (someone other than their employer) responsible for their workplace injury. In North Carolina, a janitor in a manufacturing plant was severely burned when a machine exploded. He sought to hold the plant accountable. The plant argued that worker’s comp was his exclusive remedy. But the janitor argued that he actually worked for the temp agency that assigned him to the plant, entitling him to collect a worker’s comp claim from the agency and bring a personal injury suit against the manufacturer. The manufacturer, apparently realizing the risk that a jury would agree, opted to settle the case out of court for a significant amount.

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