Why Can’t I Sue My Employer for Damages If I Get Hurt On The Job? Is there another way?

Many clients often ask why they cannot sue their employer if they are injured while in the course of their employment. The answer to this question is found in a review of the history of the workers’ compensation system.

Workers’ compensation in Massachusetts, as in most other states in the country, is what is referred to as the “exclusive remedy” when one is hurt on the job. This means the only remedy available to an injured worker is to pursue one’s rights under the workers’ compensation process. This has been the law since 1912.

History of Workers’ Compensation

Long before the first workers’ compensation system became a reality in Massachusetts, the theory of compensating injured workers claimed a remarkably interesting history. Much has been written about its origins, reaching as far back as the days of the pirates of the seventeenth and eighteenth centuries (whereby pirates on a ship would be paid in pieces of gold depending on the nature/severity of their injury), the concepts pioneered by Otto Von Bismarck in Prussia, the efforts of Theodore Roosevelt, the creation of a compulsory wage replacement system in England, and eventually moving into the United States in the early twentieth century with the advent of the industrial age.

Just before the turn of the twentieth century, and prior to the first workers’ compensation laws being passed, Massachusetts undertook some protections for injured workers by recognizing their right to sue employers for damages through common law channels. Of course, this required the injured worker to prove that their employer was negligent before any recovery could be achieved. It also meant great delays in obtaining any monetary compensation as cases often meandered through the courts for several years, even sometimes resulting in a loss for the employee. In those instances, the injured workers would have no meaningful way to support themselves and their families while they recovered, which often resulted in severe financial devastation for many workers.

To remedy this significant inequity and provide adequate compensation for injured workers, efforts began as early as 1904 to enact new laws that would create a truly “no fault” system of recovery for those injured in the course of their employment. Unfortunately, these attempts were resisted and thwarted in the early stages of the process.

Finally, in June 1910, with the influence of organized labor and the backing of several key legislators, then-Governor Eben Draper commissioned a “blue ribbon” panel of five individuals from diverse political and professional backgrounds to study and report on a proper compensation system for injured workers.

Over the ensuing months, that panel (consisting of Chairman James A. Lowell of Newton; State Representative Amos T. Saunders of Clinton; Magnus W. Alexander of Lynn; Henry Howard of Brookline; and State Representative Joseph A. Parks of Fall River) studied compensation systems in foreign countries, including England, Germany and Norway, and the recently enacted compensation scheme in New York. They also attended conferences in other states and conducted several public hearings throughout the Commonwealth.

After much political wrangling, the Massachusetts legislature finally passed a new workers’ compensation act, which then Governor Eugene Foss signed on July 28, 1911. The law went into effect on July 1, 1912.

The “Great Trade-off”

In what was called the “Great Trade-off,” the new law provided injured workers with a more defined method in which they could be adequately compensated for their injuries, without concern over who’s fault led to it, including themselves or their employer. This new law replaced lost wages, paid for related medical treatment, and provided specific payments for permanent loss of any bodily function and/or disfigurement.

In exchange for the providing of these so-called “no fault” benefits, the injured worker also gave up any right to sue their employer for other well-known common law damages, such as pain and suffering, loss of future wages, and loss of consortium.

Simply put, the “great trade-off” means that the only recourse a worker has for an injury on the job is to pursue a claim under the workers’ compensation system.

What If my employer is not covered by workers’ compensation insurance?

The law requires an employer (who has one or more employees) to carry an effective workers’ compensation insurance policy. But what if there is an employer who does not carry such a policy at the time of an employee’s injury on the job? Not all is lost. That employee can pursue a claim for workers’ compensation benefits with the Workers’ Compensation Trust Fund (a separate fund set up and administered by the Commonwealth through the Department of Industrial Accidents). That employee is also allowed to pursue a claim for common law damages (e.g., pain and suffering, etc.) through a lawsuit in the court system against the employer.

It can best be explained that a workers’ compensation insurance protects the two parties to an industrial injury. First, and foremost, it protects the injured employee. Provided the injury arose out of and in the course of the employment situation, the employer’s insurer will pay the employee to replace lost wages (at a rate specified in the law), all related medical expenses, any defined loss of bodily function and/or disfigurement, and vocational retraining. All these benefits are to be paid without the burden of proving any negligence on the part of the employer.

Secondly, it also shields the employer from being sued in a court of law for any injury received by its employees.

Is There Any Other Way I Can Sue My Employer?

Interestingly, there is one provision in the Mass. Workers’ Compensation Act which permits an employee to file a common law action for an injury on the job. Section 24 provides that an injured worker can file such a suit, only if, at the time of hire, the worker notifies his/her employer in writing that he/she intends waive his/her rights under the workers’ compensation system and to instead bring a common law action if injured on the job. Of course, from a practical standpoint, this becomes a potential risk to continued employment and, more importantly, waives one’s right to pursue a claim for workers’ compensation benefits in the future. This is the greatest risk as many on-the-job injuries result through no one’s fault. In this instance, the worker would have no recourse to any equitable
recovery.

Section 28 Claims

There is also a provision, Section 28, within the Mass. workers’ compensation law that allows an injured worker to bring a claim against an employer if it can be shown the employer was guilty of serious and willful misconduct in causing the claimed injury. This is not a lawsuit against the employer but is a claim still made under the workers’ compensation system in which the employee is seeking the payment of “double compensation.” In this instance, the workers’ compensation insurer is obligated to defend the claim, but if any double recovery is made, the employer will be charged with paying one-half of any award made. Because of this, an employer will most likely hire its own counsel to defend the claim.

Is Workers’ Compensation Still the Best System?

The Massachusetts workers’ compensation system has continually been considered one of the best in the nation, year after year. Although the system is not without its shortcomings, it, in the long run, has served to provide an adequate
remedy to replace wages and medical treatment, without having to navigate through the court system over several years, often without any source of income in the interim. Without question, the injured workers in this state continue to reap benefit from this “Great Trade-off”.

Feel Free to Call Us Anytime

We at Agnelli Law Offices, P.C. are prepared to answer your questions about these and any other concerns you may have about your industrial injury. We will always offer you an appointment to meet with us at any time in our office located in downtown Worcester.

Other Articles and Publications on Workers’ Compensation

For more on the history of workers’ compensation in Massachusetts, request a copy of The Board, written by Joseph F. Agnelli, Jr., Esquire

DISCLAIMER: This article, as well as all materials available at this web site, are for informational purposes only and not for the purpose of providing legal advice. You should contact an attorney to obtain advice with respect to any particular issue or problem. Use of and access to this Web site or any of the e-mail links contained within the site do not create an attorney-client relationship between Agnelli Law Offices, P.C. and the user or browser.