Posted on September 4, 2009 by Virginia Hunt

The Exclusive Remedy Rule

I am asked so many questions about whether an  injured worker can sue his employer that I have written an explanatory article entitled, "Can I Sue My Employer".  That article is in the Information Center at www.huntlawoffice.com.  I have included the citations to the Nevada Supreme Court  decisions that discuss the exceptions to the exclusive remedy rule. The exclusive remedy rule is used by employers to defeat lawsuits attempted by injured workers who try to sue employers for  their work injuries.  

 NRS 616A.010 and616A.020 are the actual laws that contain the language relied on by employers using the exclusive remedy defence.  Those laws say that injured workers cannot sue their employers for a work-related injury or occupational illness, and that injured workers must instead be  compensated with the benefits provided by the laws that make up our workers' compensation system in Nevada.  However, if the injury is caused by someone other than the employer or a co-employee, the injured worker may also pursue a personal injury action against the person or entity responsible for causing the injury.  The law then becomes very complex in determining who or what is a "co-employee", or an "employer" for purposes of determining whether a personal injury lawsuit can be brought.  In Richards v. Republic Silver State Disposal, 148 P.3d 684 (2006), the Nevada Supreme Court reviews the body of case law on this topic.

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Posted on May 1, 2009 by Virginia Hunt

Time to Change Exclusive Remedy Law in Nevada

I am surprised that no one is discussing making changes to Nevada's exclusive remedy law as one of many proposed solutions to the workplace safety problem. The recent U.S. House and Senate Committee hearings on Capitol Hill concerning OSHA's role in investigating workers' fatalities prompted a suggestion from Representative Dina Titus this week that criminal penalties be imposed against offending employers. Certainly that is one way to further deter repeated safety violations. A criminal penalty will give a wake up call to those employers who are more concerned with profit than the wellbeing of their employees. But lost amid this discussion of deterrence is how to better address the needs of the families of those who are seriously injured or killed through an employer's flagrant disregard of safety precautions.

Currently, for fatalities after July 1, 2008, the maximum death benefit available under Nevada workers' compensation law to the surviving spouse and dependent children of a Nevada worker is $3,410.82 a month. Compensation benefits for on-the-job injuries and deaths in Nevada are determined by the Nevada legislature. It is too late for Nevada's legislative session, due to end on June 1 in Carson City, for state legislators to consider changes to the exclusive remedy defense available to employers. The exclusive remedy defense shields employers who comply with the law and purchase workers' compensation insurance from any liability for the workplace accidents of their employees. Injured employees or family members of deceased workers are limited to the benefits provided under workers' compensation law, even if it can be shown that the accident was preventable and due to the gross negligence of the employer.

Why not increase the benefits if an injured worker or the family can show that the injury or death was caused by the employer's repeated violation of safety rules? Families may welcome being able to participate in the penalty assessment process under the proposed federal Protecting America's Workers Act, but I think Nevada families would be most appreciative of additional financial aid to replace the lost income of the loved one. We have two years before the next legislative session in Nevada. Let's start working on some overdue changes to the law that would act as a both a deterrent to extremely sloppy safety practices and as additional financial relief to the victims of those unsafe practices.

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