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If you are injured on the job, workers’ compensation—essentially, an elaborate state-run insurance program for workplace injury—kicks in to compensate you for your injury, regardless of who was at fault. It is a program that exists to make sure that your employer takes care of you when you are injured while working. The catch is that you cannot sue your employer; rather, you are stuck with what the workers’ compensation programs covers (usually medical bills, a part of your lost wages and some related out of pocket expenses like prescriptions, braces, etc.).

But, what happens if your on the job injury was not caused by your own employer? This situation arises more than you think. Take a construction site, for example. Construction projects often involve a general contractor and lots of sub-contractors. So, what happens if you work for one of the subcontractors and get injured on the job? Even if you cannot sue your immediate employer because of workers’ compensation, you can still sue third parties. So, can you sue the general contractor, under the theory that it is a third party? The answer is probably no because of something we call “the umbrella of workers’ compensation” and the “same trade and occupation bar”.

The workers’ compensation laws in Virginia allow for injured workers to sue third parties. But the question is who counts as a third party. You can sue someone who is a stranger to the workplace—or someone who does not normally belong at your place of work and maybe caused some sort of accident to happen. Or, you might be able to sue the manufacturer of a product that malfunctioned and cause your injury. But the term “third party” has a very specific meaning; it refers to a person who is not in the “same trade or occupation” as the injured person. So, if you are a construction worker and you get injured by another construction worker then may not be able to sue that person, or their employer, because they are in the same trade or occupation—that is, construction—as you.

Because of this bar to suing anyone who works in the same trade as the injured worker, we can think of workers’ compensation as casting an umbrella over all the people you might typically interact with at your place of work. If any of those individuals causes your injury, then your recovery will be restricted to the workers’ compensation program because all of them are under the umbrella.

Workers’ compensation does not always provide the best outcome for an injured worker. The umbrella of workers’ compensation is just one example of how it might limit recovery. Because of these limitations, attorneys who represent injured workers often try to figure out whether the case can be taken out of the workers’ compensation program and dealt with by traditional litigation, where full compensation for all of the harms and losses can be addressed. If you or someone you know or care for has been injured as the result of an injury on the job, at a construction site or due to the negligence of someone who was not a co-worker, and there are questions about what laws apply, e-mail or call us at ABRAMS LANDAU, Ltd. (703-796-9555) at once.

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