Three Ways Around The Workers’ Comp Exclusivity Clause

In many states, employees who are hurt on the job are subjected to an exclusivity clause that says they can only collect compensation for their injuries by submitting claims through their employers' workers' compensation insurance. This means employees are barred from filing personal injury lawsuits against their employers for injuries sustained in the workplace. However, there are three ways employees can get around this rule that may let them collect more money for their injuries or get cash for damages that wouldn't normally be covered by workers' compensation.

Dual Capacity Doctrine

One way an employee can get around the workers' compensation exclusivity clause is by using the dual capacity doctrine. This legal maneuver allows employees to file personal injury cases against employers if the company has two or more types of relationships with them (e.g. an individual is an employee of the company but also uses its products).

This situation affords an employee multiple avenues to recover damages depending on the circumstances of the accident. For instance, a person is injured at work using a saw the company manufacturers. The individual could potentially collect workers' comp for the accident and still sue the company for product liability if the saw was defective in some way that contributed to the accident.

The challenge here will be proving the company had a secondary relationship to the employee that made it liable for the person's injuries independent of the employee-employer relationship. This may require some legal maneuvering to show, so it's best to work with a personal injury attorney that's familiar with these types of cases.

Employer's Intentional Injurious Actions

An employer can also be sued in court regardless of any protection provided by workers' comp if the employee can prove the company (or one of its representatives) acted to intentionally injure the person. For instance, an employer physically assaults an employee while on the company's premises. The employee could collect money from workers' compensation and go after the employer personally for any damages that weren't covered by the workers' comp settlement.

Even if the assault was perpetrated by another employee, the employer could still be held independently liable if the company allows or approves of the assault in some way. For instance, the company has a culture of discrimination against certain employees. If one employee injures another as a result of this discrimination, the company could be on the hook for damage sustained by the victim. However, the approval must be expressed or implied for the incident to qualify.


Lastly, the employer could be independently sued if it committed some type of fraud in connection to the employee's injury. The occurs often in cases where the employer attempts to either cover up the employee's injury or hide the fact that the employer was the source of the injury.

For instance, in the case of Palestini v. General Dynamics Corp, the plaintiff alleged the company knew and failed to inform him that the chemicals he was working around contained carcinogens. The plaintiff stated he was exposed to the chemicals for about ten years, sustaining lesions and rashes during that time period. The plaintiff also claimed his workplace injury was aggravated by the continued exposure to the chemicals when he later developed cancer.

A lower court dismissed his case, stating that workers' comp was the exclusive remedy for his injuries. However, the California Court of Appeal overturned a dismissal, finding the plaintiff had produced sufficient evidence the company had attempted to fraudulently conceal aspects of the person's injuries for the case to proceed to litigation.

Getting around a workers' compensation exclusivity clause can be challenging, which is why it's important to work with a workers' comp attorney if you feel your employer should be held independently liable for your injuries. For more information about other exceptions to the exclusivity rule or assistance litigating a case, contact an attorney near you.