When the Workers’ Comp Exclusive Remedy Provision does not Apply


In general, the Workers’ Compensation Act provides protection for the employers and insurers from tort actions. This protection is known as the “exclusive remedy provision.” The provision exists to protect the employers and insurers from additional exposure after being legally required to provide benefits without proof of any level of intent or negligence. This protection generally also extends to co-workers who may have caused injury to another worker.

There are exceptions to the exclusive remedy provision. One such exception is when an injury is caused by a co-worker and it can be shown that the act of the co-worker was in a willful effort to cause injury, and that the act was purely personal in nature, the claimant may also bring suit against the co-worker. It is this requirement that can prove a difficult obstacle to overcome because, absent a blatant physical attack on the claimant, proving willful intent can be a very difficult burden.

Other exceptions to the exclusive remedy provision include: sexual assault; libel, slander, and intentional infliction of emotional distress; false arrest; sexual harassment, fraud in procurement of settlement or award; failure to provide workers’ compensation insurance; property damage; negligent inspection by an insurer; professional negligence; and others. The key element to remember in all of these is that in order to circumvent the exclusive remedy provision, there must be a showing that the event lacked a connection with the employment.