Tag Archives: exclusive remedy

That’s Not Fair!

Today’s post comes from guest author Charlie Domer, from The Domer Law Firm.

“That’s not fair!” 

I continually receive this response when I tell an injured worker that they cannot sue their employer based on their work injury and its effects.  Despite the media barrage many workers equate worker’s compensation with personal injury law.  The concept of fairness and fault quite frankly have no real place in the worker’s compensation system. 

As discussed in prior posts, the worker’s compensation system is based on a “deal” between employers and employees, dating all the way back to 1911 in Wisconsin.  Workers, in effect, gave up the right to sue in Circuit Court, along with their right to a jury trial and verdict, in exchange for certain, guaranteed, and lesser payments, regardless of having to prove fault.  Employers give up the right to their common law defenses (assumption of risk, co-employee negligence, and contributory negligence) and avoided the uncertainty of high jury verdicts, while simultaneously accepting liability (and requirement of worker’s compensation insurance) for all work-related injuries.

For most employees, the system works very well.  This is because generally only 10% of work-related injuries have provable “fault.”  These statistics were from a recent seminar I attended through the Worker’s Injury Law and Advocacy Group.  This means that–on average–only 10% of work injuries could an injured worker arguably claim was based on negligent or intentional acts of the employer or a co-worker.  Thus, for the other approximately 90% of workers, the worker’s compensation system is a huge beneficial safety net.  Without the worker’s compensation system, these workers could be off work, without any type of income or medical bill payment.  It is helpful to remind injured workers of this incredibly relevant statistic.

When asking injured workers to actually define who could have been responsible (if this was a personal injury system) for their injury, the responses generally are difficult.  In most instances, there is no one to blame–it was an accidental injury.  This is a reminder to injured workers of the true benefits of our stable and beneficial worker’s compensation system in Wisconsin.

NFL Concussion Suits Barred by “Exclusive Remedy”? Why can’t I sue my employer?

Today we have a guest post from our colleague Tom Domer or Wisconsin.

We get calls every day from angry injured workers who want to sue their employer for negligence. It could be an employer removing a guard on a machine, a foreman ignoring a safety rule, or an injury caused by an employer’s failure to train an employee. Many employees are genuinely and bitterly disappointed when we explain a worker cannot sue his employer for negligence and that his only “exclusive” remedy is through worker’s compensation.

Aaron Rodgers concussionIn liability suits filed by hundreds of former pro football players who suffer from concussion-related injuries, the players claim the league negligently mislead them about the dangers of concussions. Attorneys for the injured players indicate it is likely the NFL will argue that football players should be covered exclusively by worker’s compensation.

The deal cut by employers and workers in Wisconsin in 1911 still stands: Employers give up the right to common law defenses (contributory and co-employee negligence, assumption of risk) for a fixed schedule of benefits; employees give up the right to sue their employer in tort (and to recover tort-like damages) in return for worker’s compensation benefits. No matter how nefarious the employer or Continue reading