Aug 7, 2009

So you get injured, it's not your fault, and you decide it's time to call a lawyer and get some advice. The lawyer starts off very politely, almost likeable. But at some point in the middle of the story, he interrupts you and mumbles the words "exclusive remedy." Suddenly, he's less polite and not in the least bit likeable. Within minutes, he gives you some kind of mumbo- jumbo reason why he can't help you, and again, you think you hear the words "exclusive remedy."

In these circumstances, we are often that person's next call. This blog will try to explain what the term "exclusive remedy" means and hopefully will help you understand why finding the right lawyer is so important.

"Exclusive remedy" is a term that is found in Workers' Compensation laws. At its core, it means that if your employer has workers' compensation insurance for its workers, then the only recovery an injured worker can receive for a work-related injury is through that workers' compensation insurance. That means that this worker cannot sue the employer for causing his injury.

For example, a customer walks into a furniture shop and steps in a large puddle of water on the floor. He slips, falls, and breaks his ankle. If need be, that customer could bring a district court lawsuit against the furniture shop that could end in a jury trial. That customer could seek to recover past and future medical bills, past and future wage loss, money for permanent injuries, and, of course, money for pain and suffering.

Now change one fact from this example. Assume that the person is an employee of the furniture shop rather than a customer. Same company, same puddle...totally different outcome. Assuming that the furniture shop has workers' compensation insurance for its employees, no district court jury trial is allowed under the law. The employee's exclusive remedy is found in Colorado's Worker's Compensation Act. The legal landscape is totally different. Workers' Compensation insurance is supposed to pay for all authorized medical care. It does not pay for pain and suffering and the verbiage used to describe past and future wages is called temporary total and permanent partial disability.

Actually, no. Under the right circumstances, a workers' compensation case can provide very complete and competitive injury compensation. In the "Results" section of this website, there are multiple examples of high-dollar recoveries we have obtained for workers' compensation clients.

The reason is likely because you are a person injured on the job who is seeking to bring a claim against your employer or a co-employee you feel is at fault for your injury. Under these circumstances, Colorado's Worker's Compensation Act is your "exclusive remedy." Under other circumstances, a separate lawsuit can be pursued against a third party responsible for your work-related injury if that third party is not your employer or a co-employee. There are lawyers who focus their practice on workers' compensation only. My guess is they get a little grumpy with potential clients who want to pursue injuries beyond their comfort in the workers' compensation arena. There are other lawyers who focus only on personal injury cases and know very little about workers' compensation. If a person is injured on the job and has the right to bring a separate third party claim, many lawyers are unsure how to handle the interplay between Colorado's Workers' Compensation Act and the general negligence laws of our state.

Anderson Hemmat, is a firm equally practicing in both the areas of workers' compensation as well as general personal injury. Therefore, we can help you coordinate the benefits between the two systems.

There is a great deal of confusion about Workers' Compensation "exclusive remedy" situations. Let's try and make things a little clearer:

1) On-the-job motor vehicle accidents:
While this area confuses a lot of lawyers and injured people, this is not an exclusive remedy problem. An injured worker can recover workers' compensation AND bring a lawsuit against the negligent driver AND recover from both sources. Be careful though. By law, some recovery that you get from the auto insurance for the at-fault driver needs to be paid back to the workers' compensation insurance. The workers' compensation insurance carrier has what is called a lien against your settlement proceeds. It's complicated should probably be handled by a professional.

2) Injuries on a job site caused by employees of different companies:
Again, this is not an exclusive remedy situation. An injured worker in this situation can make a workers' compensation claim AND bring a lawsuit against the company whose employee caused the accident.

3) Injured worker employed by a subcontractor and injured by the general contractor:
This might seem like a non-exclusive remedy situation. But actually, pursuing a claim beyond workers' compensation DOES violate the exclusive remedy provisions. Thus, this worker would be limited to the recovery outlined in Colorado's Workers' Compensation Act.

4) Injured worker employed by the general contractor and injured by a subcontractor:
It's tricky, but this is not an exclusive remedy problem. The worker can recover workers' compensation benefits and also sue the subcontractor.

5) Employee injury caused by employer and employer has no workers' compensation insurance:
Colorado has special laws that let an injured worker pursue his uninsured employer either through the administrative process of workers' compensation or through a district court jury trial action. In district court, if the worker proves even 1% negligence on the part of the employer the employee can recover 100% of the damages awarded by the jury. This is a very unique feature of Colorado law that most lawyers don't know about.

There are many situations involving workers compensation and personal injury claims where more than one claim can be pursued. "Exclusive remedy" provisions prevent bringing separate claims under certain circumstances.

If the attorney you call about your problem seems short with you about your case, you are probably dealing with a lawyer who is not within his comfort zone and is probably "over his head." The good news is that there are attorneys that practice in both workers' compensation and personal injury and welcome the challenge of the complicated interplay between these two areas.

If you have been injured and treated unfairly, let Anderson Hemmat be your first call.


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