As discussed in our article on Torts, Negligent and Intentional, if one is injured by the negligent or intentional acts of another, one usually has the right to commence litigation against them and recover damages. Indeed, the most cases filed in the United States courts are based on such legal actions.

This article shall outline the basic law that relates to remedies exclusively available for injuries and illness that occurs on the job under the various worker’s compensation laws. Note that each State has its own Worker’s Compensation laws and they vary widely. This pertains to California.

The Basic Law:

In the sole context of employment, alternative remedies to actions in tort are available. Workers’ compensation laws are designed to ensure payment by employers for some part of the cost of injuries, or in some cases of occupational diseases, suffered by employees in the course of their work. Worker’s compensation legislation requires the employer to furnish a reasonably safe place to work, suitable equipment, rules and instructions if reasonably necessary, as well as reasonably competent foremen and superintendents.

The employer is liable for an employee’s acts of negligence, for the employer’s own negligence, and for extraordinary risks of work. In most cases the employer is not liable for accidents occurring outside the place of work, or unrelated to duties for the employer or for those which have not arisen directly from employment.

State workers’ compensation statutes vary by state. Some states, such as Texas, allow employers to opt out of Worker’s Compensation entirely if they provide alternative private protection to the workers though such protection is often far less than available under most Worker’s Compensation statutes. California requires Workers Compensation insurance be purchased by almost all employers.

Federally, the Federal Employment Compensation Act covers non-military federal employees or those workers employed in some significant aspect of interstate commerce. These laws also provide benefits for dependents of those workers who are killed because of work-related accidents or illnesses. Some laws also protect employers and fellow workers by limiting the amount an injured employee can recover from an employer and by eliminating the liability of co-workers in most accidents.

Other Federal statutes provide similar protection to employees for injuries due to employer negligence, such as railroad employees under The Federal Employment Liability Act (FELA), and seamen under The Merchant Marine Act (the Jones Act). The Longshore and Harbor Workers’ Compensation Act (LHWCA) provides workers’ compensation to specified employees of private maritime employers. The Black Lung Benefits Act provides compensation ion for miners suffering from “black lung” (pneumoconiosis).

Methods of Relief:

Unlike filing suit (see our article on American Litigation) workers typically proceed to make a worker’s compensation claim in the special tribunals that are set up for that particular claim.  Usually, workers need to hire a workers’ compensation lawyer if they are refused benefits to which they are entitled, are told that they can return to work before they are actually medically able, or are denied extended or permanent disability despite significant disabling injury. Such decisions are normally advanced by the employer after examination of the worker by a doctor selected by the employer.

If the employer’s doctor declares that the worker is able to return to work even though the worker disagrees, or attempts to have the worker return to work to a special job created to accommodate the worker’s injury, the worker is well advised to obtain seek professional legal advice to determine if such a decision should be contested.

Attorneys who practice in the area of workers’ compensation represent individuals who are injured or have had a loved one that has been injured or killed in a work related accident. Many different types of injuries can be compensated for, including back injuries, brain injuries, repetitive stress and carpal tunnel syndrome, injuries caused by inhalation of noxious substances or materials, and even stress claims among others. Workers’ compensation laws vary from state to state, and have very specific procedural requirements. Most attorneys who work in worker’s compensation specialize only in that field and have a large volume practice since the fees they are entitled to are set by law and relatively small.

And the matter can become quite complex.  For example, a previously existing injury may alter the damages and proof requirements available for a newly injured employee. For another example, if someone other than the employer or co-worker was partly at fault for the injury, the worker may and often does file a separate tort claim against that person or business. The remedies available for a tort claim may exceed those available via worker’s compensation thus that claim against the third party may be worth pursuing instead. Some states allow the worker to opt entirely out of the system and bring legal action under tort theories directly against the employer.

Note also that if the type of accident is not covered by workers’ compensation, the worker may be entitled to bring legal action against someone for whom the worker was working, just as he or she could file a claim against any other person who caused the personal injury. In such a case, the worker would be able to recover compensation that could not be recovered in a workers’ compensation claim, including attorney fees, compensation for pain and suffering, and punitive damages.


Due to the large volume of cases, the nature of the worker’s compensation system is highly formalized with little personal interaction between the injured worker and the doctors, lawyers and administrative judges who make the decisions. It is, by its nature, a system that processes many tens of thousands of claims with set methodology and does not adjust well to unique circumstances. That said, it does provide some relief for the many injured on the job and that relief may be critical for the future of the worker and his/her family.

But if you are expecting personalized service and an award for pain and suffering, punitive damages, etc. that is simply not available in this system and you should investigate whether a standard claim in litigation may make more sense for you and be available.

Some employers break the law and do not offer worker’s compensation insurance (since it costs them money each month) and seek to pay employees in cash or “under the table,” or mischaracterize them as independent contractors. This is illegal and can create significant liability to the employer, but the employee also faces real danger since if the employer simply disappears or becomes insolvent, there may be no relief available for an injury which could be permanent.  Any wise employer or employee is well advised to ensure that worker’s compensation insurance is in place and kept fully funded.