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8. Exclusive remedy withstands legal attacks


Exclusive remedy, also known as the “Grand Bargain” in workers compensation, is alive and well despite efforts by injured workers, including players for the National Football League, to circumvent a system that they argue is stacked against them.

The exclusive remedy was upheld by appeals courts in major cases in 2017, including those that involved particularly gruesome injuries that the employees argued were caused by employer negligence.

A $43.5 million jury award in a personal injury lawsuit against a subcontractor was overturned in July by a Texas appeals court, which found that workers compensation was the injured employee’s exclusive remedy. In 2013, Tyler Lee was injured after a superintendent for subcontractor Bonner Springs, Kansas-based Berkel & Company Contractors Inc. ignored safety concerns raised by two employees about a tipping hazard of a crane, which crushed Mr. Lee’s left leg and severed it below the knee.

Mr. Lee recovered workers comp through his employer, Parsippany, New Jersey-based Skanska USA Building Inc., but sued Berkel in state district court. He won a jury verdict, but the 14th Court of Appeals in Austin overturned the jury decision and award. An article about the ruling was the eighth most read Workers Compensation story on BI’s website in 2017.

Exclusive remedy also barred a borrowed worker whose finger was partially amputated in a workplace accident from suing the borrowing employer for negligence because the company directed and controlled his work similarly to its own workers, an Illinois appeals court ruled in March.

Even the NFL got into the game, with teams prevailing in a lawsuit brought by former players that alleged they intended to injure them by using medications to conceal their injuries and allow them to continue playing. The lawsuit argued that the underlying claims should be exceptions to workers comp exclusivity because they were triggered by intentional acts by the teams, team doctors and trainers. But a judge dismissed the claims in July.

However, a Missouri appellate court did allow a restaurant worker to sue her colleague for injuries she suffered on the job because workers comp exclusive remedy rules in the state don’t apply to co-workers.

The exclusive remedy system was created to cover injured workers for medical expenses and loss of earnings after workplace accidents in return for giving up the right to sue their employers. But some observers say that expanding limits on comp benefits and higher evidentiary standards have stacked the system against employees, leading the plaintiffs’ bar to lobby state legislators to amend laws to allow employers to be sued for tort negligence if they engage in gross negligence or willful conduct.

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