The corollary question Workers Comp lawyer Doug Landau is often asked is, “Am I restricted to the limited benefits of Workers Compensation?”
If the employer has in place a policy of Workers Compensation Insurance, then under Virginia law you probably cannot sue them for all of your losses. You are likely restricted to the limited benefits available under the Virginia Workers Compensation Act. That was the “grand bargain.” Employees got the “no fault” protection under the Administrative Comp Act and Employers were protected from lawsuits for negligence.
However, there are exceptions.
You CAN sue an employer for negligence when they did not have Workers Compensation Insurance and they were supposed to have had it. When you sue an employer who did not have the required workers compensation insurance for negligence (unsafe conduct), they do not get the benefit of the usual Affirmative Defenses of: Assumption of the Risk or Contributory Negligence.
However, you first have to show, as a condition precedent, that they should have such coverage because of the number of workers they had doing their bidding. The Virginia Workers Compensation Act does not cover “mom & pop shops,” family farms, domestic servants and other small operations with less than three regular employees. It’s jurisdictional. In other words, if they did not need to have workers compensation insurance because they fall in to one of the exceptions, then they do get to use all of the affirmative defenses allowed under the law to defeat your claim.
The important thing to remember is that when employers try to “cheat the system” by failing to have Workers Compensation Insurance when they should have had such coverage for their employees, they can be sued for negligence in court and they do not get the protections that other defendants get under Virginia law. If you or someone you care for has been injured while working, and there are questions as to their legal options, please give us a call (703-796-9555) or email us at ABRAMS LANDAU, Ltd. at once, as there are strict legal time limits for injury and disability cases.