The WC Exclusive Remedy

30 Oct, 2012 John D'Alusio


When states began to adopt workers compensation laws in the early part of the twentieth century, the system was predicated on a no-fault philosophy.  Indemnity benefits and medical treatment would be extended by the employer to the injured worker regardless of fault. In exchange, the employee surrendered the right to sue the employer at common law.

WC laws comprised a great social mutual endeavor. Injured employees who were unable to work due to compensable injuries would be the recipients of state mandated wage loss payments, and provided with medical treatment to heal the injury and return the person to work.  No longer did the employee have to sue the employer in tort to perfect economic recovery, with the employer having all common law defenses at their disposal. This ultimate compact remains the underpinning of the WC system in the US. So how is this compromise holding up these days?

As one might anticipate, the resiliency of the “great compromise” has been remarkable over the last century, despite ongoing jurisprudence that may be termed as liberal interpretation in favor of the injured worker.  The employee is still prohibited from tort recovery if injured in the course and scope of employment, but there are exceptions to the exclusive remedy provision. If these situations obtain, an employee may bring an action against his/her employer in tort. The  case is then dependent upon the employee proving negligence (the four elements of which are duty owed, duty breeched, injury, and proximate cause) on the part of the employer to obtain an award rather than the standard WC course and scope issues.

The list of situations where a worker may sue their employer may be larger than you would at first think. They include:

·       Violating a non-delegable duty

·       Gross negligence on death claims

·       Dual capacity (e.g. the employer was the manufacturer of a defective product that caused the injury)

·       Sexual assault

·       Sexual harassment

·       Intentionally removing a guard from a machine to increase productivity

·       Libel and slander

·       Intentional injury

·       Intentional infliction of emotional distress

·       Failure to provide WC coverage 

In all of these examples, the employers' potential exposure outside of the exclusive remedy is derived from actions that were not intrinsically connected with the worker's job duties and responsibilities, or the course and scope of his/her employment.

Another exception is when an injury is caused by a co-worker and it can be unequivocally demonstrated that the co-worker's act was a willful effort to cause injury and was purely personal in nature.  In this instance the injured employee may initiate a tort action against the co-employee. Of course proving that a co-employee's act was willfully negligent and intended to cause harm to a co-employee is a rather difficult legal burden to sustain.

Of course, if the exclusive remedy armor is breeched, the employee has the ability to perfect an action in the civil court system, and the employer is no longer protected by statutory caps on indemnity benefits. Now the worker is able to make claims for general and special damages without a limit on the pecuniary recovery. This is enough to cause employers tortuous nightmares (befitting of the Halloween season).

Obviously, flagrantly bad behavior by employers toward their employees is not a recipe for success either business wise or in the court system. Clearly, it has always been in the best interests of employers to do everything possible to protect their worker populace. 

The exclusive remedy doctrine has generally held up amazingly well over the last century, but it will always be somewhat of a tightrope walk for employers. Although employees may make indiscriminate attempts to circumvent WC exclusivity, the intent of the law as a carapace against tort actions has been and continues to be an overall success.  As long as the balance is maintained, the WC system, the original no-fault law, will remain viable.    


About the Author:

John D'AlusioJohn D'Alusio has over 30 years experience in P/C insurance with executive management positions in administration, field operations, and claim technical areas. Mr. D'Alusio has had many articles published in industry periodicals, and is also a contributing author to the LexisNexis published, “Complete Guide to Medicare Secondary Payer Compliance.”  He writes a monthly column for Risk & Insurance Magazine and is a quarterly columnist for AMComp Magazine.

His Risk & Insurance column is located at:

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