injured worker clutching shoulder after on-the-job accident

There are several situations where employees may be able to file a work injury lawsuit if they are hurt on the job. However, employers can only be sued under very specific circumstances.

Colombo Law can help if you have questions about filing a work injury lawsuit. Please call (304) 599-4229 today for a FREE review of your case. Our attorneys serve clients in Morgantown and throughout West Virginia.

Work Injury Lawsuit vs. Workers’ Compensation Claim

The plaintiff must establish fault in a work injury lawsuit. In other words, the evidence must show that the worker’s injuries were caused by the negligence or wrongdoing of another party or parties.

Workers’ compensation, meanwhile, is a “no-fault” system. If an employer carries workers’ compensation insurance, the employee is generally barred from suing the employer for a work-related injury or illness. In exchange, the worker is entitled to benefits including:

  • Coverage of related medical expenses
  • Replacement of two-thirds of average weekly wages
  • Disability benefits, if the employee’s ability to work is impacted long-term

Unfortunately, workers’ comp does not cover additional losses such as pain and suffering and loss of earning capacity. To recover maximum compensation for a work injury, it is generally necessary for the worker to identify one or more negligent third parties and file a personal injury lawsuit accordingly.

You may be entitled to workers’ compensation benefits as well as additional damages through a work injury lawsuit. It is generally worth speaking to an attorney to explore all of your legal rights.

When Are Employers Liable for Work Injuries? 

In the majority of cases, employers who are covered by workers’ comp insurance cannot be held liable for injuries and illnesses their workers sustain on the job. This protection typically applies even if the negligence of the employer or one of its employees caused the injury.

However, the protection afforded by workers’ compensation insurance is not absolute. In West Virginia, workers can sue an employer if it is discovered that the harm was caused by the employer’s “deliberate intention.” This standard is satisfied if the following condition is met:

“It is proved that the employer or person against whom liability is asserted acted with a consciously, subjectively and deliberately formed intention to produce the specific result of injury or death to an employee. This standard requires a showing of an actual, specific intent and may not be satisfied by allegation or proof of: (i) Conduct which produces a result that was not specifically intended; (ii) conduct which constitutes negligence, no matter how gross or aggravated; or (iii) willful, wanton or reckless misconduct”

  • West Virginia Code § 23-4-2(d)(2)(A)
  • Deliberate intent lawsuits against employers who knowingly put their employees in harm’s way are also known as “Mandolidis claims.” Mandolidis v. Elkins Industries, Inc. was a case tried before the Supreme Court of West Virginia that established the “deliberate intention” standard used today.

    Both personal injury and wrongful death claims may be brought against employers whose conduct rises to the level of a “consciously, subjectively and deliberately formed intention to produce the specific result of injury or death to an employee.” However, Mandolidis claims are extremely challenging and require a knowledgeable lawyer to handle on your behalf.

    Do I Have a Work Injury Lawsuit?

    Your ability to sue for a workplace injury depends on several factors:

    1. Workers’ Compensation Coverage

    First, you need to determine if your employer has workers’ compensation insurance. Although most employers in West Virginia are required to purchase coverage, some businesses are exempt:

    • Agricultural businesses with five or fewer full-time employees
    • Employers with casual employees with inconsistent hours
    • Church employers
    • Professional sports employers
    • Volunteer rescue squads and police units

    Employers may also apply for an exemption from the West Virginia Insurance Commissioner. If your employer does not carry workers’ comp insurance, you can file a lawsuit for an injury you sustained on the job if you can prove that the negligence of the employer or one of your coworkers caused you harm.

    2. Your Employment Status

    Independent contractors are not covered by workers’ compensation insurance. As such, if you are classified as an independent contractor and you get hurt on the job, you are generally responsible for your own expenses. (Unless you can prove that the employer was negligent and you suffered harm as a result.)

    However, it is not uncommon for employers to misclassify employees as independent contractors. An attorney can fight back if you are unfairly denied the benefits you are owed.

    3. Third Party Liability

    Workers’ compensation may not be your only legal option. In addition to the limited circumstances where an employer can be sued outside workers’ comp, it is important to consider the role that one or more negligent third parties may have had in causing your injury.

    Potential defendants in a work injury lawsuit against a third party may include:

    • A contractor, subcontractor, or vendor
    • The manufacturer of a defective product
    • A motorist who hits you when you are on the job
    • The owner of the premises where you were working

    Get Started on Your Work Injury Lawsuit Today

    Injured workers need to understand the full extent of their rights. These rights may include not only workers’ compensation benefits but the ability to sue one or more parties.

    At Colombo Law, our attorneys can help you navigate the workers’ compensation system and determine whether or not you have a viable work injury lawsuit against your employer and/or a third party. We are committed to maximizing your benefits and other compensation.

    Contact Colombo Law today for a FREE consultation.

    by Colombo Law
    Last updated on - Originally published on