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Virginia Supreme Court Applies Workers Compensation Bar To Subsequent Lawsuit Against Uninsured Employer

Published by on February 13, 2012

Can an employee pursue a lawsuit against his employer for personal injuries if he has already filed a workers’ compensation claim when the employer was not insured?  Interestingly, under Virginia law, the answer apparently depends on whether the workers’ compensation claim is final.  More after the break. In Redifer v. Chester (Supreme Court of Virginia, Record […]

Can an employee pursue a lawsuit against his employer for personal injuries if he has already filed a workers’ compensation claim when the employer was not insured?  Interestingly, under Virginia law, the answer apparently depends on whether the workers’ compensation claim is final.  More after the break.

In Redifer v. Chester (Supreme Court of Virginia, Record No. 101902; January 13, 2012), the court considered whether an employee may pursue a civil action for damages against his employer in addition to collecting benefits awarded by the Virginia Workers’ Compensation Commission (Commission), when the employer has failed to insure payment of workers’ compensation benefits as required by Virginia Code § 65.2-800. The court found he could not, affirming the Circuit Court’s decision. 

Code § 65.2-805 precludes an injured employee from pursuing a personal injury action at law when he has already fully and successfully pursued a workers’ compensation claim and obtained a recoverable award. The Act, in Code § 65.2-307(A), states:

The rights and remedies herein granted to an employee when his employer and he have accepted the provisions of this title respectively to pay and accept compensation on account of injury or death by accident shall exclude all other rights and remedies . . . on account of such injury, loss of service or death.

Every employer and employee, except those statutorily exempted, is conclusively presumed to have accepted the provisions of the Act. Code § 65.2-300.

The court stated that, under the Code, to effect a recovery an employee may collect only one recovery from his uninsured employer. An employee may pursue alternative relief simultaneously, and if the employee fails to collect under the remedy he or she initially pursues to award, the employee may pursue the alternative remedy in an effort to effect a recovery. The employee, however, is entitled to only one recovery.

In this case, Redifer successfully obtained a final workers’ compensation award for an injury he suffered to his right arm while working a wool press operator for his employer’s sheep and wool business. Redifer had received some of that award from his employer and was assured of recovering all the workers’ compensation benefits to which he was entitled from his employer or the UEF. Accordingly, Redifer has received the recovery he sought under the Act. Thus, the Court found that the Circuit Court did not err in ruling that Redifer could not pursue an action at law against his employer after obtaining a final collectible award of workers’ compensation benefits.

A copy of the decision can be found here.

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