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WHEN ARE YOU NOT PROTECTED BY VIRGINIA’S WORKERS’ COMPACT?

By: Megan B. Caramore, Esq. & Dustin T. Narcisse, Esq.

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• How the VA Workers’ Compensation Act (Act) works as the exclusive remedy for most workplace injuries.

WHAT WE’LL • How the Act protects employers from lawsuits in civil courts. COVER… AGENDA • When are employers not protected by the Act?

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THE ACT PROVIDES INJURED EMPLOYEES WITH AN EXCLUSIVE REMEDY WHEN THEY’RE INJURED ON THE

The Act prohibits employees from suing their employers for injuries incurred in the ordinary scope of , and provides an exclusive avenue of recourse for injured employees to recover against their employers.

The rights and remedies herein granted to an employee when his employer and he have accepted the provisions of this title Section 65.2-307 respectively to pay and accept compensation on account of injury of the Act provides or death by accident shall exclude all other rights and remedies of that: such employee, his personal representative, parents, dependents, or next of kin, at common law or otherwise, on account of such injury, loss of service, or death.

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1 NO CIVIL LAWSUIT!!!

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THE ACT PROVIDES INJURED EMPLOYEES WITH AN EXCLUSIVE REMEDY WHEN THEY’RE INJURED ON THE JOB

The employer fails to comply with the Act The injury did not arise out of or in the course of employment

The employee was sexually assaulted

The employee is not an “employee” as The employee has a substantive right that’s defined by the Act recognized by federal maritime law

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Employer’s Failure to Comply with the Act

An employer is liable for compensation awarded by the Commission or “at law in a suit instituted by the employee” if it fails to comply with the statutory requirement to provide . § 65.2- 805(A)

• The employee may pursue a remedy either in a civil action or in a proceeding under the Act.

• When an uninsured employer fails to pay the employee the award decreed him by the Commission, the employee is not barred from resorting to a civil action.

Moreover, if the employee seeks compensation in a civil action, the employer is precluded from certain defenses, such as contributory negligence.

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2 Limitations to an employee’s recovery against an uninsured employer:

• Employees are only allowed to be compensated once; therefore, when an employee is awarded compensation by the Commission, an employee is barred from recovery via a civil suit.

• The employee must still present a prima facie case of negligence for the recovery of injuries in civil court if outside of workers’ compensation.

• If the employee elects to pursue a workers’ compensation claim then the Uninsured Employers’ Fund (UEF) gets involved. • The UEF may pursue a civil action against the employer to recover benefits paid to the employee from the Uninsured Employers Fund.

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The Employee is Not an “Employee” as Defined by the Act

The injured person may sue the employer in a civil action when the injured person is not an employee defined in § 65.2-101. To be an “employee” there must be an employer- employee relationship. The elements are: 1. selection and engagement of the employee, 2. payment of a , 3. the employer has the power of , and 4. the employer has power of control of the employee’s action (MOST IMPORTANT!).

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Examples of Non-Employees:

• Independent Contractors • Employer has less than three employees regularly in service. • Casual Employee: not permanent nor periodically regular, but occasional, or by chance and not in the usual course of the employer’s trade or business. • Executive Officers • Miscellaneous Exempt Persons: • Taxi drivers • Sports officials • Domestic servants • Real estate sales persons • Farm • Owner-operators of motor • Railroad workers vehicles

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3 The Injury Did Not Arise Out of or in the Course of the Employee’s Employment

• Once it’s established that the injured person is an employee as defined by the Act, the employer and its insurance carrier must next determine if the injury is compensable. • The Act applies when the employee’s injury was… 1. caused by an accident, 2. arose out of the employment, and 3. occurred in the course of the employment. • Employee + Compensable injury = Act is the exclusive remedy • Employee + Non-compensable injury = civil lawsuit is the only remaining remedy

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ACT SPECIFICALLY EXCLUDES THE FOLLOWING INJURY, DISEASE, OR CONDITION ARISING FROM…

• Participation in employer-sponsored off-duty recreational activities which are not part of the employee’s duties; or

• Use of a motor vehicle that was provided to the employee by a motor vehicle dealer as defined by § 46.2-1500 and bears a dealer’s license plate as defined by § 46.2-1550 for

(i) commuting to or from work, or

(ii) any other nonwork activity.

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Victims of Sexual Assaults

• Section 65.2-301 provides that an employee who is sexually assaulted in the course of employment and promptly reports the assault to law enforcement, is deemed to have suffered an injury by accident arising out of the employment, when the nature of the employment substantially increases the risk of such assault. • An employee who is sexually assaulted and can identify the attacker may elect to pursue a lawsuit against the attacker, even if the assaulted employee’s employer or co-employee, for full damages resulting from such assault. • If the victim receives civil damages after receiving compensation under the Act, repayment of the compensation is required.

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4 The Employee Has a Substantive Right That is Recognized by Federal Maritime Law

• When a injured worker asserts a civil negligence action against the employer, a court must first determine whether the plaintiff properly asserted a substantive right that was recognized by federal general maritime law. • If the injured worker did assert a substantive right, the court could give effect to otherwise-applicable state law if the state law in question did not operate to deprive the litigant of that right. • Example: Moore v. Capitol Finishes, Inc., 360 F.2d 360, 365– 66 (4th Cir. 1966)

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General Contractors and Sub-Contractors

• The Act provides that when a general contractor subcontracts all or part of the work undertaken by the general contractor in “his trade, business or occupation” then the general contractor is deemed a “statutory employer” of the subcontractor and his employees. § 65.2-302 • As a statutory employer, the general contractor is liable for the injuries caused by the employees of the subcontractor. • It also means that the subcontractor is immune to civil personal injury claims brought against him and his employees by the general contractor’s employees.

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THE ACT IS A SWORD AND SHIELD!

Sword – allows employers to prevent a civil action by an injured employee.

Shield – protects employers from damages available in civil court such as pain and suffering.

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5 IN CONCLUSION…

• The Act providing injured workers with an exclusive remedy protects employer’s from exorbitant civil lawsuit judgements. Therefore, employers must be diligent in insuring that they comply with the Act’s requirements.

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Thank You! Megan B. Caramore, Esq. (757) 446-8623 [email protected]

The information in this presentation is for general information about the topics discussed, and is not legal or tax advice. Nor does any exchange of information associated with this presentation in any way establish an attorney-client relationship.

Dustin T. Narcisse, Esq. (757) 446-8681 [email protected]

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