By Aili Obandja, Esq.
Usually, no. If Vermont’s workers’ compensation law covers your injury, you generally must seek workers’ compensation benefits rather than sue your employer for that injury. This is called the exclusive-remedy rule.
An exception may apply if your employer did not have the required workers’ compensation coverage when you were injured.
What Does “Exclusive Remedy” Mean?
Under 21 V.S.A. § 622, workers’ compensation generally provides your exclusive remedy against your employer for a covered injury, meaning you generally cannot bring a separate negligence lawsuit for that injury. The statute recognizes exceptions under § 618(b) and § 624. Under 21 V.S.A. § 618(a)(1)(A), you generally do not have to prove employer negligence to receive workers’ compensation benefits, but you must establish that you suffered a personal injury by accident arising out of and in the course of your employment.
An unsafe workplace or your employer’s failure to prevent an accident does not, by itself, give you the right to sue. A denied workers’ compensation claim does not automatically give you that right either. You must determine why the claim was denied and whether workers’ compensation law covers the injury.
This rule applies to claims for the work injury. It does not make every separate employment dispute a workers’ compensation matter.
What If Your Employer Did Not Have the Required Coverage?
Before relying on this exception, confirm whether your employer had the required workers’ compensation coverage when you were injured.
Under 21 V.S.A. § 618(b), if your employer failed to secure workers’ compensation as required by § 687, you may choose to claim workers’ compensation benefits or bring a civil lawsuit against your employer for the full damages resulting from your work injury.
Special rules apply to that lawsuit. Your employer has the burden of proving that your injury did not result from its negligence and that its negligence was not the proximate cause of your injury. Proximate cause concerns whether your employer’s negligence legally caused your injury.
Your employer cannot defend the lawsuit by arguing that a fellow employee’s negligence caused your injury or that you assumed the risks of employment. The statute also restricts the comparative-negligence defense—an argument based on your own share of fault—except where your negligence was willful and intended to cause an injury.
If you win, you are entitled to costs, interest from the date the claim was filed, and reasonable attorney’s fees.
Your employer’s lack of insurance does not eliminate its responsibility. 21 V.S.A. § 687 allows certain owners or business officials to be held personally responsible for workers’ compensation benefits and permits liens against property in qualifying circumstances.
What Is the Deadline to Sue?
Section 618(c) sets a three-year limitation period for this lawsuit. Seek advice promptly about your options and the filing deadline that applies to your claim.
Does Accepting Payment Give Up Your Right to Sue?
Accepting payment for your work injury does not, by itself, prevent you from later choosing to pursue a civil lawsuit under § 618(b) against an employer that did not have the required coverage. Under § 618(d), you waive that right only if you sign a written agreement with knowledge of your rights and the agreement is filed with and approved by the Commissioner of Labor. If your employer fails to pay an amount due and owing under the Workers’ Compensation Act, the waiver becomes void. You may then pursue a civil lawsuit under § 618(b), subject to the applicable filing deadline.
What If Someone Other Than Your Employer Caused Your Injury?
You may have a separate claim against another person or business legally responsible for your injury. Under 21 V.S.A. § 624, receiving workers’ compensation does not automatically prevent you from pursuing a claim against that third party.
For example, if another driver causes a collision while you are driving for work, you may have a claim against that driver in addition to your workers’ compensation claim. Whether the driver qualifies as a third party depends on their relationship to you and your employer.
Third-party claims have notice requirements. If you recover money from a third party, you may have to use part of it to reimburse your employer or its insurance carrier for workers’ compensation payments. The recovery may also affect future benefits. Get advice before filing a lawsuit or signing a release.
Get Help Understanding Your Options
I represent injured workers in Vermont workers’ compensation matters. I can review your claim and help you understand whether you may also have a right to sue. Call 802-556-3582 to discuss whether I may be able to assist.
This blog provides general information, not legal advice. Reading it or making an initial call does not create an attorney-client relationship. A signed written fee agreement is required before I begin representation. Your rights depend on the facts, coverage status, applicable law, and filing deadlines.
