Your ability to sue your employer for a work-related injury generally depends on whether your employer has purchased workers’ compensation insurance.
Under Virginia law, any employer with three or more employees must have workers’ compensation insurance. However, some employers may operate in violation of this law. Also, if a company has fewer than three employees, it can still elect to carry workers’ compensation insurance.
So, if you have suffered a work-related injury or illness, determining whether your employer has workers’ compensation coverage will be a primary consideration. An attorney can help you to make that determination.
If your employer does not have workers’ compensation coverage, then yes, you can file a personal injury claim against the employer. However, unlike a workers’ compensation claim, you would need to prove that your employer was at fault (and your own fault can be taken into account, too.)
If your employer does have workers’ compensation insurance – in reality, most employers do – then you cannot sue your employer. Your “exclusive remedy” would be to file a claim for workers’ compensation benefits.
Keep in mind: If you suffered an injury due to the negligence of a “third party,” or non-employer, then you could pursue a personal injury claim against that party. However, your recovery would be “offset” by the amount that you have received in workers’ compensation medical and lost-wage benefits.
