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Exclusive Remedy

What is Exclusive Remedy?

Workers compensation provides exclusive remedy for injured workers, including compensation such as medical benefits, wage compensation and death benefits.

Why exclusive remedy sometimes helps -
Under exclusive remedy both the employer and the employee forfeit certain rights.
The worker gains immediate payments, avoids the cost and time of filing a claim and does not have to prove the employer is negligent. The employer also saves time and money fighting injury claims but may end up paying for losses they could have avoided if they had successfully won the injury case.


Can Exclusive Remedy be challenged?

In 1985, the Supreme Court in Millison v. E.I. duPont Nemours took up the issue of conduct that could rise to the level of an intentional wrong, allowing for a worker to avoid the exclusive remedy from workers compensation. In this case the worker was able to prove that their employer's actions were deliberate and fraudulent. This case developed precedence that to void workers compensation as the sole remedy it must be proven the employer acted "deliberately" and the injury must also be expected to occur with "substantial certainty."

With the Supreme Court's decision in Millison v. E.I. duPont Nemours and subsequent challenges heard by state and federal courts, current laws continue to indicate that employers cannot expect to act in fraudulent and intentional manners, with certainty of injury, and expect employees to only receive compensation through workers compensation claims. Under certain conditions, the employee will be allowed to claim additional compensation by filing a personal injury case.

Courts have also upheld other cases where an employee may sue an employer, but these cases generally depend on the worker proving negligence. Most of these cases extend beyond the scope of injury during the course of a worker's normal job duties and may included sexual assault, sexual harassment, gross negligence, injury due to a defective product, libel and slander, intentional injury, and failure to provide workers compensation coverage.

In conclusion...
For most workers, who have suffered common work injuries, workers compensation should be viewed as an exclusive remedy. Although many workers and advocate groups, who are unhappy with the concept of exclusive remedy, will still attempt to erode the exclusivity remedy of the Workers' Compensation Act, proponents of the system argue that it has held up well over the last one hundred years. Those in favor of workers compensation argue the benefits of exclusive remedy without the need for a tort action helps the largest number of workers and allows for businesses to remain strong and healthy. Others argue the benefits for both worker and businesses must continue to remain balanced for workers compensation to last in its current form.

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