We start from the premis that when there is an underlying workers' compensation ("work comp") claim in a personal injury case (aka the "combined case"), there should be two simple yet abiding goals: (1) Avoiding Malpractice, and (2) Maximizing Recovery for your client. These two goals are generally aligned although the potential exists for them to be or to become divergent under certain circumstances.
Whenever a person is involved in an accident while working, caused by the negligence of a third-party, that person may have both a personal injury claim against the third-party and a workers' compensation claim. The interaction of these two benefits and the pitfalls of handling those claims are issues that every personal injury attorney needs to address.
The statutory employer provision of the Virginia Workers' Compensation Act, Virginia Code §65.2-302, has esentially created a framework where it can either be used as a sword or as a shield. It is used as a sword in the context of workers' compensation to find the injured workers some available workers' compensation coverage. It is used as a shield in the context of personal injury litigation to prevent the injured worker from bringing a personal injury claim against certain potential defendants.
Occupational Diseases have been recognized as part of the Workers' Compensation Act since 1944. Prior to that time, only "injury by accident" cases were considered compensable. The initial inclusion of occupational diseases was by way of specific schedule. In 1969, a General Assembly advisory report recommended the elimination of the schedule because the schedule was likely to have the effect of eliminating diseases not listed.
It is widely recognized that personal injury cases can have significantly more financial value to the injured person than a worker's compensation claim. The personal injury claimant can make claim for a wide variety of damages including pain, suffering, inconvenience, etc. On the other hand, the worker's compensation claimant is limited specified type of claims and damages which do not include pain, suffering and inconvenience.
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