Workers Compensation, Personal Injury and the Exclusive Remedy Rule

Workers' compensation statutes in most states limit a worker's remedies for work-related injuries to a workers' comp claim against the employer. That is, workers' compensation is the exclusive remedy available to employees who are injured on the job, for recovery of damages or other compensation from their employers.

What Is Meant by "Exclusive Remedy"

Workers' compensation coverage is referred to as the "exclusive remedy" available to an injured worker, because with few exceptions it provides the sole means of obtaining compensation for an on-the-job injury.

  • Except in narrow circumstances, such as where the employer actually intends to cause harm to the worker, no matter how egregious the employer's conduct the worker's sole remedy against the employer will be through the workers' compensation system.
  • Workers' compensation laws similarly bar actions against co-employees who cause the worker's injury.

Despite the exclusive remedy rule, in many cases workers' compensation works to the advantage of the employee, as the employee will receive benefits for lost wages, medical care and rehabilitation. That is true even if the worker causes his own injury.

The certainty of compensation, including a guarantee of compensation when an injury might otherwise go uncompensated, usually carries a greater benefit to the worker than the opportunity to file a personal injury claim.

As the exclusive remedy rule operates to shield the insured employer from liability, there are circumstances where a personal injury action remains possible.

  • Sometimes an employee will be injured while on the premises of another business,
  • Sometimes an employee will be injured through the fault or actions of a person who is not an employer or co-employee.
  • Sometimes an employer will fail to carry workers' compensation insurance, and will lose the protection of the exclusive remedy rule.

Under those circumstances, the injured worker may be able to bring a personal injury action in addition to any workers' compensation claim.

When Can A Personal Injury Claim Be Filed

A personal injury claim may be filed whenever workers' compensation laws don't prohibit the personal injury suit.

Third Parties

In most cases, a personal injury claim will be possible when the worker is injured to the negligence of a "third party". A third party is a person or entity that is neither the worker's employer nor has status as their co-employee.

The "exclusive remedy" provisions of workers' compensation law normally apply only when the employer carries workers' compensation insurance coverage as required by state law.

  • An employer who chooses not to obtain required coverage, or opts out of the workers' compensation system in one of the few states that allow employers to opt out, will not be protected by the "exclusive remedy" provision.
  • In a few jurisdictions, the worker may also be able to opt out of workers' compensation, having the right to choose between pursuing a claim for guaranteed benefits under the workers' compensation system , or to instead pursue a personal injury action.

However, most states do not permit either the employer or employee to opt out of the system.

It can sometimes be tricky to determine if an injury was caused by a third party, as some states have created rather complicated rules of what constitutes "employment" under their worker's compensation laws. The laws may permit workers to be deemed the "co-employees" of multiple employers, thereby extending the exclusive remedy provision to bringing workers' compensation claims against any of their multiple employers.


The exclusive remedy provisions of workers' compensation law normally apply only when the employer carries workers' compensation insurance coverage as required by state law.

Workers' compensation does not block a lawsuit for injuries intentionally caused by an employer, but it is rare that an employee can prove an intentional injury. Intent requires more than the employer's creation of an unsafe workplace in which an employee will inevitably be injured. It requires that the employer have the actual intent to injure the employee.

Any worker who is injured on the job may make a worker's compensation claim, and for most injuries it is not necessary to get help from a lawyer. However, workers will benefit from consulting lawyers for assistance when trying to figure out if workers' compensation is the exclusive remedy for injuries that may have been fully or partially caused by a third party, and whether that third party can be sued for compensation.

Common Personal Injury Claims

Situations in which an injured worker may be able to bring a personal injury lawsuit in addition to a workers' compensation claim include the following:

Product Liability Actions: Sometimes a worker will be injured by using defective or unreasonably dangerous equipment, or due to dangerously deficient instructions or warnings for the operation of the equipment, and the fault for the defect will lie with a third party (such as the manufacturer, distributor, or installer of the equipment). It may be possible for the injured worker to bring a product liability action against a third party whose negligence caused or contributed to the accident.

Third Party on Employer's Premises: Sometimes a third party will be on the premises of the employer, and will commit an act which causes injury to the employee. For example, a delivery driver in a warehouse may injure an employee by hitting him with a forklift, or a contractor may be performing roof repairs within the employer's building and drop a tool on a worker's head.

Where the injury is caused by a person who truly is a third party, and has no employment relationship with the injured worker's employer, it may be possible to pursue a personal injury action against that person, and possibly also that person's employer.

Injury Occurring On Somebody Else's Premises: Sometimes a worker will be performing job duties away from the employer's premises, and will suffer injury due to the conduct of somebody at the remote jobsite. For example,

  • A delivery driver may become involved in a car accident, and will usually be able to sue the driver who caused the accident in addition to claiming workers' compensation. 
  • A worker who is performing tasks at another facility, who is injured by the negligence of a third party while performing that work, may be able to bring a personal injury suit against the negligent third party, and possibly also against that person's employer.

Intentional Torts: If the employer actually intends to harm the worker, the exclusive remedy provision of workers' compensation law will not apply and the injured worker may bring a lawsuit against the employer. Note that this does not extend to situations where the employer acts with indifference, or creates an exceptionally and unlawfully hazardous working environment - it means an actual intent to cause harm. Due to its narrow nature, this exception is rarely implicated.

One of the most common contexts where an injured worker may have a claim against a third party is within the context of a construction accident. It is not unusual for workers from multiple contractors and subcontractors to be simultaneously working on the same construction site, and as a result it is not uncommon for a construction injury to have been caused by the negligence of a third party who remains subject to personal injury litigation. It is also common for dangerous equipment to be used on construction sites, some of which is poorly maintained and some of which may be dangerous in its design.

Copyright © 2005 Aaron Larson, All rights reserved. No portion of this article may be reproduced without the express written permission of the copyright holder. If you use a quotation, excerpt or paraphrase of this article, except as otherwise authorized in writing by the author of the article you must cite this article as a source for your work and include a link back to the original article from any online materials that incorporate or are derived from the content of this article.

This article was last reviewed or amended on May 7, 2018.