Hidden Tort Gems in the Workers Comp System

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1 Virginia Trial Lawyers Association Annual Convention March 2015 n The Greenbrier Hidden Tort Gems in the Workers Comp System Stephen T. Harper

2 "HIDDEN TORTS GEM" WITHIN THE VIRGINIA WORKERS COMPENSATION ACT Vr'hile "contributory negligence" might be the two least favorite words in the English language of every trial lawyer in Virginia, the phrase "Workers' Compensation Bar" runs a prelty close second. As every trial lawyer in Virginia knows, what may sound like an incredible personal injury case can quickly go nowhere if the Workers Compensation bar applies. Virginia Code $ is the statute that creates a lo1 of heartache for trial lawyers all over Virginia. The point of this outline is to show you the hidden gems within the Virginia Workers Compensation Act that allow you to still pursue a full civil remedy on behalf of your clients despite appearances the claim made might be baned by the Virginia Workers Compensation Act. othcrs. Virginia Code ô provides thal the employee's rights under the Act exclude all ".4. The rights and remedies herein granted to an employee when his employer and he have accepted the provisions of this title respectively to pay and accept compensation on account of injury or death by accident shall exclude all other rights and remedies of such employee, his personal representative, parents, dependents or next of kin, at common law or otherwise, on account of such injury, loss of service or death".' As a general rule, if the potential client comes to you and they are an employee, their employer had three or more employees on a regular basis, their employer had viable workers' compensation coverage and the accident arose out of and in the course and scope of their employment, then the workers' compensation act is their exclusive remedy. However, what many plaintiff attorneys don't know is that there are some hidden exceptions to this bar that allow you to file a traditional personal injury law suit.

3 Although there are some hidden gems, i1 is no1 as simple as what many clients ask us. Who hasn't had a client come in and say "well my employer was at fault, they were grossly negligent, they knew about it, this happened before, doesn't that mean I can sue them". In Virginia, none of these points matter, the answer still ends up being no. The real question is which of the below exceptions to the workers compensation bar may apply in your situation F ailurc of Employer to carry Workers' Compensation coverage allorvs the Employee to eithcr to havc the option of filing a workers' Compensation Claim or suing thc Employer in Tort u'ithout any dcfenscs of contributory negligence or assumption of risk. Presently there are half dozen jurisdictions which still follow the absolute contributory negligence doctrine. Virginia in its wisdom continues to be one of those. Many trial lawyers from other states may have a big advantage over us because they don't have to deal with pure contributory negligence; they are only dealing with comparative fault. However, $ does level the playing field, in cerlain situations. Under the Virginia Workers' Compensation Act, if the employer has three or more regular employee's they are required under Virginia law to provide workers' compensation coverage. (See Virginia Code $ ). However, if at the time of the accident they failed to provide such co\ erage then the injured worker is left with several options. (i) they can proceed with their workers compensation claim against the employer and rely on the Uninsured EmpÌoyers' Fund to pay for any workers' compensation benehts they are awarded, or, more importantly, (2) they have the option to pursue a normal civil cause of action against the ernployer to recover damages for personal injury or wrongful death.

4 Virginia Code $ (A) provides two penalties against the employer who fails to carry workers' compensation coverage. First, there is a civil penalty of not more than $250 per day for each day ol' noncornpliance subject to a maximum penalty of $50, This punislunent provides no benefit to your injured client. However, the second half of $ (AX2) has the real teefh. If the employer failed to maintain workers' compensation coverage at the time of your employees' accident, then the bar of $ does not ap_ply $ allows a law suit to "be instituted by the employee against such employer to recover damages for personal injury or death by accident", when they failed to carry the required insurance coverage. $6s.2-80s(A). Additionally, in "any such" cause of action, the employer shall not be permitted to defend upon any of the following gror.urds: 1. That the employee was negligent; 2. That the injury was caused by the negligence ofa fellow employee; or 3. That the employee had assumed the risk of injury.' Consequently you are left with a plaintiff attorney's best scenario, a case where the defense cannot argue contributory negligence or assumption of risk. Short of a rare case involving willful and wanton negligence, this is something rurique in Virginia Jurisprudence. See, Thotnas v. Snow, 162 Ya. 654, , 174 S.E. 837, 840 (1 934). There are few reported cases involving $ or its predecessor $ Although the statute does not require an election of remedy, once the claimant receives a remedy, either through workers' compensation or a civil cause of action, the other cause of action is barred under this statute. See Redifer v. Chester,283 Ya. 121,720 S.E.2d 66 (2012), stating that $ "precludes an injured employee from pursuing a personal injury action at

5 law when he fully and successfully pursued a workers' compensation claim and attained a recoverable awald". However, "unsuccessful resoft to civil action will not bar the employee from pursuing his remedy under llre act". Va. (Jsed Auto Parts v. Robertsott,2l2 Ya. 100, 181 S.Ë.2d 612 (1971). (lnterpreting ) Lastly, see Delp v. Bety,2l3 Ya 186, 195 S.E.2d 817 (1973). In Delp, fhe plaintiff filed a claim under the workers' compensatiotr act and received an award from the Industrial Commission (the predecessor name for the Workers' Compensatiotr Commission). However he was unsuccessful in collecting the benefrts awarded to him by the Commission. Therefore he was not barred from pursuing a civil action under $ (Predecessor of $6s.2-805). Because $65.2-S05 has not been applied very many times. there is some dispute on the i terpretation of the language involved. Recently the Circuit Court for the City of Roanoke in llade v. scott Recvcling-LLe, cli4-24 issued a written opinion interpreting $ In that case, the employer failed to provide workers compensation coverage at the time ofthe accident, so the plaintiff filed a cause of action for negligence. The plaintiff then filed a Motion for Summary Judgmenl alleging that under their interpretation of $ , strict liability applies, citing the language of $ that provides thal the empioyer "also should be liable... in a suit instituted by the employee against the employer to recover damages for personal injury". Essentially. the plaintiflls attorney argued that the statue mandates strict liability for noncompliant employers, therefore, the only issue to be decided by the jury was the amount of damages. The circuit courl granted the plaintiff s attorney Motion for Summary Judgment, ñnding that the defendant was liable and the only issue to be tried was the issue of damages. That case was later tried to a verdict for damages in January At the time of the writing of

6 this outline, it was still unceflain whether that issue will be appealed or not. However fhe Wade opinion directly contradicts the opinion of Sîso v Aradi, htc.,20 Cir, L15622 (1995). In Siso. the plaintiff made the same argument, but the Court went on to hold that the plaintiff still needed 10 prove the employer was negligent and caused the accident. It refused to impose strict liability, unlike the Couft in Ií/ade. 2. S Employee can file tort suit against Employcr for Sexual Assault. The second hidden tort remedy in the workers' comp act is $ which concerns victims of sexual assault in the workplace. Under (A), any employee who, in the course of employnent, is sexually assaulted, reports the assault to the appropriate law-enforcement authority and "where the nature of such employment substantially increases the risk of such assault, upon a proper showing ofdamages compensable under this title, shall be deemed to have suffered an injury arìsing out of the Act and have a valid claim for workers' compensation benelits."3 In effect, under paft (A), the statute provides for a remedy in many cases of sexual assault under the workers' compensation act. Where the toft remedy kicks ir is in $ (B). Under (B), if an employee is sexually assaulted and can identify the attacker, they have the election to pursue an action-at-law against the attacker, even if the attacker is the employer or co-employee, for full damages resulting ftom such assault in lieu ofpursuing benefrts under the workers' compensation act. $ acfually ends up accomplishing two pulposes. It defines a sexual assault, where there is increased risk of such assault, as a compensable work injury. It aiso provides that the victim may pulsue a civil action-atjaw against the attacker, even if such a claim would normally be barred by the exclusivity provisions of

7 $ has been used successfully several times. The irnportant fact about $ is that it means that a victim of a sexual assault while at work has a civil remedy under 3 y scenario. If the assault occuned, in parl, because the nature of employment substantially increased the risk of sexual assault urder $ (B), the claimant still has the ability to elect to pursue either a workers' compensation claim or a civil remedy. In Butler v. Southern States coot:erative, \nc.,270 Ya. 459,620 S.E.2d 768 (2005), the trial court struck the claimant's civil action at law based on the exclusive remedy of the workers' comp act. The Supreme Cout't reversed, holding that allowed the civil claim to go forward. If the assault was personal to the victim and 4q! because the nature of the employment substantially increased the risk of sexual assault, then it is not compensable under the workers' compensation act. See, Carr v. Cittt of Norfolk, 15 Va. App.266, 422 S E'2d 417 (1992) ' In Carr, the Court Appeals affirmed the VWC decision denying benefits to Caff. The assault on Carr was a sexual assault by a fellow employee, but it was personal in nature, therefore it did not arise out of the employment so it was not compensable under the workers' compensation act. Because it did not arise out of the employment, there would be a potential civil temedy because there was no viable workers' compensation claim Employcc can file wrongful termination suit against Employer if termination was because of workers' comp claim. 308 Another "Hidden" tor1 remedy under the workers' compensation act is supplied by $65.2- This statute provides that (A)

8 no employer or person shall discharge an employee solely because the employee intends to file or has frled a claim under this title (i.e. the Workers' Compensation Act), or has testihed or is about to testify in any proceeding under this title.' Under par1 (B): an ernployee may bring an action in a circuit court having jurisdiction over the employer or persor who allegedly discharged the employee in violation of this section. The court shall have jurisdiction, for cause shown, to restrain violations and order appropriate relief, including actual damages and attorney's fees to successful claimants and the rehiring or reinstatement of the employee, with back pay plus interest at the judgment rate as provided in S Clearly, this statute is noteworthy not only because it allows a civil cause of action against the enrployer for discharge from employment because of a claim made under tþe workers' compensation act, but it also explicitly provides for attorney's fees to the successful claimant, along with back pay plus interest and damages. obviously, the greatest difficultly with $ is that it requires a plaintiff to present evidence which establishes that he was terminated solely because he did file or intended to hle a workers' compensation claim. See Cottlev v Tyson Footls, \nc.,257 Ya.518, 514 S.E.2d 770 (1999). There are only a handful of reporled cases citing $ and out of those, most of them appear to have been unsuccessful. However the statute is out there and could be used in the right circumstances' 4. LONGSHORE STATUTE DISCUSSION Recent Longshore amendment in Virginia opens door to new tort claims' changes made to Longshore claims with concurrent coverage under the Virginia workers, compensation were implemented by Legislative action in That change has opened up the door for civil law suits against what would be traditionally viewed as statutory employers. prior to July 1,2012, the F'ederal Longshore act allowed concurrent julisdiction with

9 the Virginia Workers' Compensation Act. Meaning cefain injured workers could qualify for both virginia workers' compensation benefits and for the Longshoreman benefits. However, they could not get a double recovery, i.e., ifthere would be an offset for benef,rts provided under the other statutory provision. However in 2012, abill was passed by the General Assembly on behalfofthe shipbuilders to exclude those person's covered by the Longshore and Harbor Workers Compensation Act, 33 U.S.C $$901, etc., and the Maritime Act of 1920,46 U.S C., $30104, from benefits under the virginia workers compensation Act. In other words, the statute was changed so if there was jurisdiction under the Longshore Act, the injured worker no longer had a Virginia Workers' Compensation state remedy. VTLA's workers' compensation section and labor unions, opposed this legislation because it reduced benefits for injured Longshore Workers'. Those efforts to block the bill were unsuccessful. However, while the statute reduced the potential workers' compensation benefits for Longshore employees in virginia, in a few cases there was a silver lining in the personal iujury context. While the Longshore Act, just like $ , provides immunity from a civil cause of action against the direct employer, the Longshore Act does not have a statutory employer provision like the Virginia Workers' Compensation Act. (See Va Code $ ) As many plaintiffs' attorneys know, the typical injured worker not only has no civil remedy against their <lirect employer but also has no civil remedy against their statutorj, employer and their statutory co-workers. $ extends the shield ofthe workers' compensation bar to not only the direct employee, but to many other persons. For example, in a new building construction, while the injured worker may work for the electrician, he may have been injured when the crane operator

10 who works for a completely different business, dropped a steel beam on the electrician. Because both the electrical subcontractor and the crane company subcontractor were all hired by the same general contractor, the workers' compensation bar applies and there is no remedy at law, only a workers' compensation remedy. Now, with the change to the dehnition of $ eliminating Longshoreman claims from the Virginia Workers' Compensation Act, this statutory employer bar no longer applies in the Longshoreman context. So if you have an injr-red worker who had the same lype of accident described above, (they work for company A as an electrician, they are injured by the actions ofan employee of company B who operating a crane), but it was done at a shipyard, where your claimant would be a Longshoreman, he has two remedies. lfhe has a Longshoreman claim against his direct employer, and he has a personal injury claim against the crane operator and the crane operator's company, which before the statutory change, you would not have. The frame work of "statutory employer" and "statutory co-workers" is a confusing area ofthe law that most personal injury attomeys r,vant to avoid, there now exists another reason to examine the statutory employer issue, you may f,rnd a personal injury clairn exists whele it did not before ARISING OUT OF'THE COURSE AND SCOPE OF EMPLOYMENT The general rule is for the Workers' Compensation Bar to apply, the Virginia Workers' Compensation Commission has to have jurisdiction over the claim and the claim needs to be a compensable injury. Virginia is not what workers' compensation attorneys call a "positional risk state" where any and all accidents that occur while the injured worker is on the job are deemed compensable. Virginia is thought of as "an actual risk state", which means that the injured workers' accident must "arise out of the course and scope oftheir employment". What that long

11 phrase really means is that there are many times where it may sound like the claimant was on the job and working, but they may not have a compensable workers' compensation case. Ifthat is the case then the workers' compensation bar would not apply to a civil personal injury proceeding. The scope of the "arising out of issue is longer than this talk allows for, but the general principal is that there are times when an injured worker may be underlaking a task that is personal in nature or the worker may not be on the job when the accident occurs. For example, if they ar.e running an errand for work but take a detour from that errand to run a personal errand, then they have taken themselves outside the scope of their employment. If they work at a business in a strip mall and are injured in the parking lot by a co-worker, the virginia workers' Compensation laws may provide that the accident did not arise out of the scope and course of their employment. If so, then they have a personal injury case against their co-worker. See Ramey v. B ob b irt, 250 Y a. 47 4, 463 S.E. 2d 431, (1995). It is important to understand that not all injuries at work are covered under workers' compensation, including but not limited to repetitive motion or cumulative trauma injuries. Creative plaintiffs lawyers have looked for ways to find remedies for their clients against their employer. Pasl cases have held such lawsuits permissible under the right fact pattern. See, Mitlrllekatdfv. Allstate Ins.. Co..247 Ya' 150,439 S.E. 2d394 (1994) (suit for injury from harassment and verbal abuse not barred since gradually incurred injuries are not covered by workers' compensation), Lichtntatt v. Ktto4f 248 Va. 13 8, 445 S E. 2d 1 14 (1994) (suit for international infliction of emotion distress not barred since not covered by workers' compensation); Riclunond Newspaoers v. Hazelwood.249 Ya.369,457 S.E. 2d 56 (1995) (suit

12 against employer for goosing not barred since it was personal, not related to his employment and not compensable under workers' compensation.) If you are uncertain whether the workers' compensation bar applies or not, you need to consult with a workers' compensation claimant's attorney for assistance in determining whether the accident arose out ofthe coutse and scope ofyour clients' employment. CURRENT LEGISLATIVE CHANGES In the 20i 5 legislative session (ongoing at the time this article was written) a legislative eff'ort has been made to eliminate some of the fundamental unfairness that occurs in those cases that fall in the grey area between workers' compensation and personal injury. There are many timcs where a Circuit Couft may apply a workers' compensation bar, yet the case may not be compensable under the Virginia Workers' Compensation Act for technical reasons, such as it did not arise out ofthe course and soope ofthe injured workers employment. In such situations the injured party is left without either remedy. In an effort to fix this conundrum, Flouse Bill and Senate Bill770 were introduced in this most recent session to try ensure that in this context, if the Workers' Compensation Commission rules that the accident did not arise out of the course and scope of employment, then that means no workers compensation Bar would be allowed to apply in circuit cour1. If the circuit court holds that the workers' compensation Bar arises the there would be no argument that the claim did not arise out ofthe course and scope ofthe claimant's employment in the Workers' Compensation context. (See attached draft bill 58770). At the time of this wïiting the bill had passed through the full house and the full senate but the differences have to be hashed out by the crossover committee.

13 CONCLUSION In the end. when you are faced with a potential Workers' Compensation Bar, there are a number ofexceptions that you need to look for. Some ofthose exceptions provide advantages that you would never get in your normal personal injr.ry practice, such as no contributory negligence, attorney's fees, etc. Each and every case needs to be examined carefully to see if an exception to C7 applies, allowing your injurcd worker to have a civil remedy with his day in courl before a jury of his peers and not be limited to the administrative remedy of Workers' Compensation.

14 ' stâtcs "4. Tlr" rjghtr *d.",rredies hereiu granted to an cmployee when his cmployer arìd he have accepted the provisìons of this title r spectrvcly to pây and ac cpt oompensatjon olì âccount of injury or death by accrdent shall exclude âll other rights and relncdics ofsuch employee, his personal iepresentativc, parents, depcndents or next ofkin, at common law or othenvise, on iìccount of slìch injury, loss ofservice or death "..i1. Notwitlìsianding this èxclusiou, nothing in tho Act shall bar an cmployer from voluntâri!y agreeing to pay employee compensatiolì âbovc ând beyond tlìosc benefits providcd fo in the Acl. Nothing herein, however, shall bc deenled to affect or altcr any existing right or relnedy of the enipìoycr or enrployee under the ^ct (Codc 1950, $65-17; i968,c.660,$65.1'40; 1991, c 355; 1999,c 842.)" \É j!!5: Civil penally lor violation of{.â , , and , states., AÍst ch employer tàils to comply with the provisions ol or $ , lìe shall be âsscssed a civil penalty olnol lcss thân s500 nor nlore than $5,0 0, and he shall be liable durilìg continuance ofsùch failure to any cmployee either for compcllsâiion under this title or al lâw in a suit irìstitulcd by the ernployee against such employer to rccover damages îor personal injury or dea{h by accident, and in arly such srrit slrch employcr shall not be pcrnritted to defcttd upon any ofthe lollowing grourìdsl T al lhc emplo)ec $ ls negligen(. I 2 Thât the iryury wiìs caused by the ncgfigence ofa fellow employee; or 3 That the employce had assurned lhe risk ofthe injury " '.8. Any person who lails to conìpty with the provisrons of I shall be assesscd a civil penally of not lcss than $500 nor more thtur $5.000 for each iìsta ce of noncompli ance, in addition to any othcr pcnalties aþþlicablc under this title "..C. The oivil pcnalties hcrcin provided måy bc âssessed by the Commission irì an open he ìring with the right ofreview and appeal âs il oiher cascs. Upon a finding by the Commission of suoh fâilure to colnþly, and after 15 days'writtelì notice thereof scnt by certified måil to thc employer, rf such failurc co'ltinues, the Comlnission may o dcr tbc employer to ccase and desist all busincss (r ìnsactio s and opcrrlìôns Dntil found by the Colr]rnissiou to be in cornpli nce with tho provisions of this clìâpter' " "D. Àny oivil penalty asscsscd pursuarìt to this section shall bc Þaid into the Uninsürcd Dlnployer's Fund cstablished in Chapter l2 ($65 2'1200 et seq)ot'tlris tiite. (Codct950, ;t968,c.660, ,1970,c4'70,1914,a.314,1980,c.443; l99l,c 355; 1993, c. 378; 2005, c 69)." 'Â statcs "a..4.ny ernploy"" * o, irì the course ofcmployment, js scxuâlly assaulted, âs defined in $$ , l8 2'67.1, , or $ , aû Þromptiy reiorts thc âssault to thc appropriate l w-enforcement authority, where the naturc ofsrtch enployment srbstâiltially inc eases thc risk of iuch assauli, upon â propcr showi g of damâges couìpeusablc onder this titlc, shall be deemed to havc süffe ed an injury arising out of the enrploynlcnt and shall have a valid cl.lnù 1òr workers' compcnsâtion beneñls ",.8. Nohvithttutding the provisions of this tille. an enìployee who is sexually assaulted and can iderìtily the âltâcker nlay elect to pùrsue an aciion-at,law against thc attacker, evcn ilthe attacker is the âssaulted employee's enployer or oo-clnployee, for full darnages rcsulting from such Àssâult in lieu of-pùrsuirlg benefìls ullder thìs title, ând upon repaymenl olâ y benefits received under this title " "C Nolhi g in tiris litlc shall creato a rcnedy for scxual halassnlent nor shafl this title bâr any âction at lav, might othcrwise exist, by an cr ployee who is scxualfy harasscd." ' "e. stâtes No.-ptoy"t o, p" son slì ìll discharge an cmployee solely because th employee idtends to file or hâs lìled a claim under this lìllc nr has testifred or is about to teslily in any prooecding u(der this titlc lhedischargcofapersonwhohas lìlcd a fraudulent claim isnotâviolation of this scction."..8. 'l he elnployce may bring ân action in ta cìrcuit court havingjurisdiction over thc enlployer or person who aflegedly disch rged thc enployee in violation ofahis sectio 1. Thc court slìall havcjurisdiction, for cause shown, to rcstrain violations and order appropriate relif9l, including actual dâtnågcs and attordey's fees to succcssful clainants ând the rehirilìg or reinstatemerìt ofthc cmployee, with back pay plus inte est at thejudgment r lc as provided in $ " ' sf Ìfes T Wlìelr oq, pc'.on l.eferred to in this sectiorì ìs "owner") urdclakes to perfonn or execute any work which is a part of his trådc, btrsiness or occupâtion tuid conkacts wilh any othcr pcrson (referrod to in fhis section as "subcontíactor") for the execution or Þctfornl ìnce by or undcr süch subc;ufactor ol thc whole or âny pârt of the work undertakeu by such owncr, lhe owne shall be liâble to pay to any \Yorkcr cmployed in tlìe work âny oompensation under this title which he would hâve been liable 10 pây ifthe worker håd been inìmediately cmployed by hint.'..8. Whão arry person (referrcd to in this section as "contractor") contracts 10 petfo.m or executc any wo k for allothcr pcrson which work or undertakiug ii riot a part oftlìe trade, busirìcss or occupâlion ofsuch othcr petson and conlracts with any other pcrson (refe red to in this scctiotl ìs,tubconìractof') ior the executìon or perfonnânce by o under the s{rbcontractor of the whole or any part of the work undcrtaken by such co t actor, thcn th; contractor slìall be liable to pay to any worker employed in the work any compensation urldcr this title wbich he worrld hâve beer lrrblc to pay illhat worker hâd been immediåtcly employed by hinì " '.C. Whcn the sutcontractor in tuín contracts \r'ith still anothcr person (also rclòrred to as "subcontractoc') for the perfonllânce or execution by or under such last suboontrâctor ollhe who'e or any part of the work undertakcn by the fìrst subcontrac{or, then the liabifily of the olvner or contr ictor shall bc lhe same âs the tiabiljly irnposed by subsections A and B oftlìis sectiolì "..D t. t,jabitity lor cornpcnsation pursuant to this section nray not be imposed ågainst âny person who, åt thc tine of an injury sustained by a wo.kct engagel in the mìintcnânce or repa r olrerìl property manâged by such pe son, and 1br which injury cotnpelìsation is souglìt: a: Was engagcd in the bus ress of propcty managerncnt on behalf of the owners of slìch propcriy ând was actìrìg metely as alì agent of the owllcr: b D-id nol engage in âlìd had no employccs engaged in the same trade, tìusiress ol occupâtion âs the worker sceking colnpedsationl and

15 c. Did not seek or oblain from such property's owners, or f om any olhcr property owners for wholìl such person Íendercd property managenìent scrvrces, profrt lrom lhe se vices pcrlòrnred by individuâls engaged in tho sämc trade, business or occupâtion as the wotker seeking compcnsation. 2. Ìror purposcs of ihis subscction. "the busincss of property nrânagement" mcâln the oversight, supcrvision. ard care of real prope ty or ilìrprovements lo real propely, on behalfofsuclì ptoperfy's owners '3. For purposes oîìhis su6section, "property owncrs" or "property's ownerj' nleans (i) owners in fee ofsucll property of(ii) persons hâring ìcg ìl entiúen;ent 1() the use or occupâtion of suoh property at the liln of the injury for which liabilily is sought to be irììposed pursrrânt tô this section.

16 2015 SESSION S[,NATIì SUBSTI'lUl'E ) r SENATE BILL NO. 770 Z FI-OOR AMENDMEN'f IN THE NATURE OF A SUIlSlll'U]'ì1 3 (Proposed by Senatol McEachir 4 ort Febt uary 9,2015) 5 (Pahon Prior to Substitu te- Senator McÈâchilr) 6 A BILL to runend qnd reenact S oj the Code of Virginia, relqíing to tlrc vírginiq Worketl' 7 Com.pensation Act; etclu:iivíl.y oj rerrletlies. 8 Be it enactcd by the General Asscmbly of Yirginia: 9 1. 'fhât $ 65,2-307 of the Codc of Virginia is arnendcd and reenacted as follows: 10 {j Eürployee's rights under Act excludc all others; exception' ll The lights and remedjcs hcìein grarted to ar employee when his empìoyer anci he have accepte<i 12 the ^. plovìsìons of this title respectjvely lo påy ând acccpt conpeíìsation on account of injuly ol death by l3 accident shall exclude all other Iights and [cmedies of such employee, his personaì r'e r'esent ul ivc, 14 parents, dependents, or next of kin, a[ cotnmon law ot olhclwise, on account of such injuly, loss of 15 seryice. ot cleath, l6 B, IJ o court of tlte Cc nt nr nwecllth nrcice.s ct.t'iutling in o firltl. wnppealed order bclsetl on o t 17 etitlentiary heuring or o.l tt uctl stipltlûíiotl oj the parties u1d pqríkip(nt\ thereío Íhel the r:uuse ol 18 ur:tion relot Ìtg Ío ult ecci(lent, ìr'tjur t, l 5s tt, < r tlettlt is Ltarred by Illis se(:tiot!, rhut firuling shuli be 19 res jldicata bdween those seme pqrties and esto t flrcm ond an, entp[oyer, rninsuretl entplol,er's Jinrd, 20 guarantee furttl, respottsible entities or,ttttulory enìplq'er front arguirtg bejòre the Conuni,tsion tlnt flrc 2l accident, itljury, disease, or decúh ditl Ltot orise out of and in Íl1e course of suc:h ernpktyee',t enlp[o),r]rcnt. 22 I.f the Cc rnmission mclkes a.fittdirtg ín a JincLl. unctppea[ed ortler ufter an evidentiorl, hearirry or a JLrcnol 23 stipultrtictrr of the ptûies th(ú Íl1e (:lai.ftts rel.cttittg to a acciderú, injurl, disea.\e, or Lleolh did nol orise 24 out of or in the coltrse of sucll emplo,ee's e lploynenl, the thot.linditrg shal.[ be res.jutlicøta antl eslop 25 tlu.ye s(nrc ptlrt es from cu guing l4lc.tre a court of the Connu nwealth tlrut the occ dent is bctrre l by he 26 qcl.usn'ìt), provisiorts oj the Act. Howe:yer, er(;epí in llìe ctse of a self-iusured emploter ot business 27 erlt ty closc[y reloîed to u port\) to tl]e courl proceeding, itt order fttr the ccturt finding tct be re.; judir;utct 28 qs k a no -p(lrty. notic:e shct[[ be provitletl in lhe,san e nlatuler os qlk v'el ín subseclíon lt ol 29 S or 5s to qn)) qnployer, u tinsurcd enplo,e '5 furttl, guaruníee fund, 30 responsible entiíies or stotutor)r enpb.versottgh.t to be bound. In qdditiut, eny tu(;lt e úi ie.\ so notifietl be 3l ""hqll given tlrc s.lme opporrurút1t b be heaftl in tllqí conrt tr<tceeding as o pot'f)) lo llrc sante, bul litllilell lo 32 the issue oj whether Íhe occìden!, injur,, l 5 qt., r r tlealh urose at.ll ol L t(l ín lhe course oj lhe 33 enployee'.s enq)loyt rc l, Fctilure to provitle noík:e þ aot), parl.y lo lhe courl proceeding shall. nol o Tecl 34 the rights, privileges, or obligcttious <tf snid. tclrties thereto but sha affert enh, tlte uppl c;ab tit, r,t 35 subsectic n curcl ottlls cts stoted. herein. FLrúhe norc, the fí ing.s b, n,r", lhe Conntíssir n or the coutl 36 under tltis subsectio sh( l noí prcrent the paríies and porticipanls îo those prcleeditlgs lnnl t,ti\ing,)l 37 relying upotl etly an(ì all other availab[e defen.;es, 38 C. Notwithstandin8 this exclusion, nothing in thc Act shall bal an em rloyer lronr volurltatily 39 aglceìng to pay ar) cmployee conpensâtion above and beyond those benefits r'ovicìed for iu the Act, 40 Norhing he ein, howevcr, shall be deerreci to affecl or alte any existirlg right ol lenedy of the enployel 4l ol elrpìoyee undcl the Act. h H z Þ Fl tlj n A\{ U tn Fl H H A \{ H trj (/) t! -l \] O(./)..)

17 STEPHEN T. HARPER A graduate of the University of North Carolina Chapel Hill and the University of Richmond Law School, Stephen has been practicing law since He specializes in handling workers' compensation cases. He is an active member of the Virginia Trial Lawyers Association (VTLA), the Richmond Bar Association and the American Association of Justice (AAJ). He serves on the board of governors of both VTLA and WILG. He is the past chair of the workers' compensation section for VTLA and serves currently as the legislative chair for the workers' compensation section of VTLA. Stephen has tried hurdreds ofworkers' compensation cases and also taken his client cases to the highest Virginia courts handling workers' compensation cases, including the Courl ofappeals and the Supreme Court of Virginia on numerous occasions. He has been involved in numerous cases setting significant precedents in the area ofworkers' compensation law. In Stephen's first four years of practice, he tried approximately three dozen personal injury jury trials to a conclusion. Since then he has had hundreds ofbench trials and dozens more personal injury trials. Stephen has not only written numerous articles and lectures on nurnel'ous occasions in legards to his areas of specialty; he is a recognized expert in regards to the interplay between both personal injury and workers' compensation cases involving the same accident. He was named by WILG as one oflhe Nation's Top 100 Injured Workers' Attorney in2014. Stephen not only has an expertise in handling accident and disability cases, but he spends much of his lree time working on his race car so he can get back behind the wheel at the next race. He regularly races in the NASA Mid-Atlantic region circuit and has numerous wins and class championships to his name. Visit rvrvrv.lìacccal'i-ar,v.conr for more information on his racing hobby.

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