Before workers’ compensation laws were passed by the legislatures of each state, an injured worker had to prove that his employer was at fault for his accident in a personal injury lawsuit brought against his employer. Workers’ compensation laws were enacted in order to ensure that all injured workers, regardless of whose fault the accident is, receive medical care, some wage loss compensation, some compensation for permanent injuries, and retraining, if necessary. In return for requiring that all employers purchase workers’ compensation insurance, employers cannot be sued by an injured worker for work-related injuries and occupational illnesses. An injured employee’s exclusive remedy for a work injury are the benefits provided by law.
If an injured employee tries to bring a personal injury lawsuit against his employer for a work injury, alleging, for example, that the injury was caused by his employer’s gross negligence or failure to provide a safe work place, the lawsuit will invariably be dismissed when the employer raises the exclusive remedy defense. This is a difficult concept for injured workers to understand, particularly if their injury is very serious and the employer is obviously at fault for the accident, because the injured worker is only partially compensated for his financial loss under workers’ compensation law. The injured worker can file a complaint with the regulatory agency about the unsafe work condition under the Nevada Occupational Safety and Health Act, but cannot sue for damages, and any fines assessed against the employer do not go to the injured worker.1
The Nevada Supreme Court has recognized some narrow exceptions that may apply to allow an injured employee to sue his employer:
-The employee is fired for filing a workers compensation claim.2
-The employee is fired for refusing to work under unsafe work conditions.3
-The employer intentionally injures the employees by an assault and battery.4
-The employer essentially forces the employee to quit by demoting him to a lesser position following a work injury. 5
While an injured employee may not sue his employer, if the injury was caused by a third party ( i.e. someone other than a co-employee or the employer, the employee may be able to bring a personal injury lawsuit against the third party in addition to receiving workers’ compensation benefits. This is a complex area of the law in determining whether a third party is a statutory co-employee that can be sued, and you will need legal representation in these cases.
1 Kennecott Coppper Corp. v. Reyes, 337 P.2d 624 (Nev. 1959); King v. Penrod, 652 F. Supp 918 (D. Nev. 1981), aff’d, 731 F. 2d 1388 (9th Cir. 1984); Wood v. Safeway, 121 P.3d 1026 (Nev. 2005); Frith v. Harrah’s, 552 P.2d 337 (1976).
2 Hanson v. Harrash’s, 675 P.2d 394 (1984)
3 D’Angelo v. Garner, 819 P.2d 206 (1991)
4 Barjesteh, v. Fayes’ Pub, 787 P.2d 405 (1990)
5 Dillard Department Stores, Inc. v. Beckwith, 989 P.2d 882 (Nev.1999), cert.denied, 530 U.S. 1276 (2000)
Exclusive remedy NRS 616A.010, NRS 616A.020.
