For many of us, going to work every morning carries risk. That is because some of us work in very dangerous fields, where the risk of injury is part of the job. In fields where danger is prevalent, we depend on our employers to try to make the workplace as safe as it can be. But sometimes they fail, and fail badly. When they do, an employee’s options for recovery may depend on the facts of the case.
Workers’ Compensation Immunity
Assuming that your employer has and offers workers compensation, you are generally barred from suing them for negligence after an injury. The good thing about workers’ comp is that it does not matter who is at fault for your injury and you do not have to prove that anybody was liable for anything. That saves a victim time and allows him or her a relatively available pot of money to help with medical bills and lost wages.
The tradeoff, however, is that in Maryland, as in many states, an employee cannot sue an employer if the employer was negligent, but rather is limited to the workers’ comp system. While comp does eliminate some proof burdens and possibly lengthy trials, it also limits recovery.
Unlike a traditional injury suit, in workers’ comp, pain, suffering and other intangible, non-economic damages cannot be recovered. You are basically limited to your strict, hard out of pocket damages.
The personal injury immunity applies so long as your employer offers workers compensation—you cannot voluntarily decline it and opt to sue in personal injury. Thus, voluntarily choosing not to take workers’ comp, will not help.
Few Limitations on Immunity
The only limitation on this immunity is when the employer is grossly negligent. However, the employer must be so negligent, and so wantonly careless, that it almost amounts to an intentional act. Very few accidents happen this way.
This does not mean that you can not sue third parties when you are injured on the job. For example, a roadside construction worker hit by an oncoming car could sue the driver. An electrician electrocuted by a property owner’s failure to properly mark high voltage underground wires could sue the property owner. Someone who works in a mall store could sue the mall owner if injured somewhere other than in the store where he or she works.
In many cases, there are factual issues as to whether the injured party actually worked for the negligent party. The relationships between companies, subsidiaries, and affiliates may have to be explored. This is especially true on construction sites, where a company could be a subcontractor of an employer, and thus protected by the compensation immunity, but they may also be a completely unrelated third party who also is working on the job site.
In many cases, the question of whether a victim’s employer was the same company as the negligent defendant becomes a factual jury issue to be decided at trial.
We can help you uncover who may be liable for your workplace injury. Contact the attorneys of Brassel Alexander, LLC today for a free consultation to discuss your on the job accident case.