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CAN I STILL SUE MY EMPLOYER (or THE EMPLOYER’S DOCTORS or EMPLOYER’S INSURANCE CO.)?

In 1912, the Workers’ Compensation system replaced the system that permitted an employee to sue its employer in civil court for injuries caused by the employer’s negligence. Under the old system, an employer could avoid all liability if the court found that: (1)  the employer had exercised reasonable care, (2)  the employee had been negligent, (3) a co-employee had caused the injury, or (4)  the employee had assumed the risks of a particularly dangerous job. The old system left most maimed workers dependent upon their families and charities for their livelihood and support.

pic-workcomp4.jpgThe Workers’ Compensation Act promised certain modest wage loss benefits, medical benefits and vocational rehabilitation benefits  in exchange for an employee’s right to sue for pain and suffering and other damages in front of a jury.  The United States Supreme Court upheld the compensation acts as constitutional because it found that both employers and employees had given up something in a fair exchange.  If a workers’ compensation system were ever to become so lopsided in favor of either the employer or employee, the whole system is supposed to be overturned as unconstitutional. A Florida judge recently ruled that the Florida law had become so lopsided in favor of business interests, that it was in fact declared unconstitutional. (The case was overturned for other reasons.)

The “exclusive remedy” provision of the Workers’ Compensation Act generally prevents an employee from suing his or her employer (or co-employees) for the injuries it negligently causes, however,  an employee may still have certain lawsuits that are unaffected by the act. For example, an employee can sue its employer for injuries “intentionally” inflicted on the employee by the employer and its agents. If an employer is responsible for the employee’s injuries in some different capacity other than as employer, the employee might be able to sue under “the dual capacity doctrine.”  Under the right facts, the employee can still sue an employer for the intentional infliction of emotional distress, wrongful discharge, for violations of the Americans with Disabilities Act, the  Michigan Persons with Disabilities Civil Rights Act or  the Whistleblower Protection Act,  or for sexual harassment under the Elliot-Larsen Civil Rights Act. The employee is still free to sue a manufacturer of defective products that caused his or her injuries.

Disabled employees may also qualify for other benefits besides workers’ compensation. Some of these benefits include Social Security Disability, Supplemental Security Income, Medicare, Medicaid, State Disability Assistance, sick leave, short and long term disability insurance and disability pensions.  Talk with your lawyer about these other benefits that may be available.

pic-workcomp5.jpgThere is some authority that permits an employee to sue the employer’s insurance company or third party claims adjuster for emotional distress and for claims handled in bad faith.  If an  insurer sends an employee to a doctor who aggravates an injury or causes an injury, an employee can still sue the insurer and doctor for malpractice or negligence.  There is also authority  that an employer and/or insurer can be liable in a civil lawsuit for injuries incurred when an  employer or insurer attempts to control the medical treatment of an employee and the employee’s condition is worsened because the employee is not given adequate or proper care.

Finally, the Workers’ Compensation Act itself provides that “A person shall not discharge an employee or in any manner discriminate against an employee because the employee filed a complaint or instituted or caused to be instituted a proceeding under this act or because of the exercise by the employee on behalf of himself or herself or others of a right afforded by this act.”  These “retaliatory discharge” or “retaliatory discrimination” lawsuits can be filed in circuit court and employees are entitled to unlimited tort damages for pain, suffering, harassment, humiliation and stress. (On a related note, it is actually a misdemeanor for an employer to consistently discharge employees who suffer injuries on the job.)

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