Pennsylvania’s workers’ compensation law has a section known as the exclusive remedy provision. Even if you have not heard of this provision by name, you may be familiar with its purpose. This is the section of the law that says you are unable to sue your employer for negligence that resulted in your workplace injury. Recently, the exclusive remedy provision has garnered new attention thanks to the COVID-19 pandemic. There are a few exceptions to the provision, and the question on everyone’s mind is, “Will COVID-19 fall under one of the exceptions?”

What is the Exclusive Remedy Provision?

Specifically, the exclusive remedy provision refers to Title 77 P.S. Workers’ Compensation § 481. The first part of this section states, “(a) The liability of an employer under this act shall be exclusive and in place of any and all other liability to such employes, his legal representative, husband or wife, parents, dependents, next of kin or anyone otherwise entitled to damages in any action at law or otherwise on account of any injury or death as defined in section 301(c)(1) and (2) or occupational disease as defined in section 108.”

All this is saying is that your employer’s liability is confined to workers’ compensation claims. Neither you nor any of your representatives, relatives, or dependents can file a suit against your employer for your injury, illness, or death outside of workers’ compensation law. There is also a second part of the section, however, which states that you can still sue a third party for your workplace injury. But, your employer cannot be held financially liable for negligence under these circumstances either.

Why does the exclusive remedy provision exist? Workers’ compensation is a trade-off. The reason for this provision is to protect employers against the high costs associated with fighting lawsuits that could very well put them out of business while employees are supposed to be guaranteed compensation for their on-the-job injuries and illnesses. The theory is that a personal injury lawsuit may or may not result in a recovery, but workers’ compensation should be easier to obtain, taking the risk out of the equation. It is meant to be the middle-ground option. Whether or not that is how it works in reality is up for debate.

Exclusive Remedy Provision Exceptions

There are two notable exceptions to the exclusive remedy provision of the Pennsylvania Workers’ Compensation Act: Intentional acts and failure to insure.

Intentional Acts

Intentional acts committed against a worker that result in injury are exempt from the exclusive remedy provision. But, some acts are easier to prove as intentional than others. If your boss says that they do not like you for strictly personal reasons and then proceeds to push you down the stairs, that may fall under this exception. However, things get more complicated when it comes to intentional safety violations.

If you work in a manufacturing plant and are injured while using a saw that had its handguard removed, that injury does not necessarily fall under an intentional act exception even if it violates OSHA guidelines. While your employer may have intentionally removed the handguard to speed up production, they did not do so in order to intentionally harm their employees — that is just an effect of their action. But in the case Martin v. Lancaster Battery Co., 606 A.2d 444 (Pa. 1992), a clarification was made to this exception.

Martin was exposed to dangerous levels of lead dust and underwent a test for his exposure levels through his employer. His employer then hid his results from him and only revealed the results after altering them to make Martin’s exposure level appear lower than it actually was. Martin’s initial lead dust exposure would have fallen under the purview of workers’ compensation. But because his employer intentionally hid and altered his exposure test results, knowing that this would worsen Martin’s condition, the aggravation of his injury was considered a malicious and intentional act by his employer.

Failure to Insure

If your employer fails to carry workers’ compensation insurance, that too creates an exception to the exclusive remedy provision. In such a situation, you can elect to either file a workers’ compensation claim or a tort injury claim. There are pros and cons to each option, so you will want to talk with an experienced attorney before making your choice.

On the workers’ compensation front, the employer may pay those benefits directly or the Uninsured Employers Guaranty Fund may be where your compensation payments will come from. This can be good because there is a better guarantee that you will actually receive compensation than if you file a tort claim. But, your compensation may be more limited under this fund. Tort claims are the opposite. There is a lower guarantee that you will receive compensation, but the potential for higher compensation is there. However, if the employer did not carry workers’ compensation insurance, they may not have carried liability Insurance either. So if your employer is unable to pay for your compensation themself, you may only receive a portion of your awarded sum or none at all.

Will COVID-19 be an Exception to Exclusive Remedy?

COVID-19 is unlikely to fall under the intentional act exception of the exclusive remedy provision. You would have to prove that your employer intended to cause you harm by exposing you to the virus which would be extremely difficult. Even if your employer refused to provide workers with PPE and maintain proper social distancing guidelines, that would likely not be enough to prove the intent required.

Failure to insure is a much more plausible exception for COVID-19 to fall under. Any work-related injury can theoretically be covered by this exception if the employer does not have workers’ compensation coverage. And with the financial pressures associated with the current pandemic, it is feasible that some employers might not make their insurance payments. But, this is far from saying that COVID-19 will be considered an exception across the board.

In most cases, your best option for covering your medical expenses and lost wages is going to be filing for workers’ compensation. And it is important for you to notify the employer of your work injury and how it happened as soon as possible and make sure you pursue your claim. Not only is workers’ compensation law full of strict deadlines, but the sooner you start the claims process, the better your chances of receiving compensation generally are.

Conclusion

The exclusive remedy provision is a section of Pennsylvania’s Workers’ Compensation Act that lays out how injured workers are able to seek compensation from their employers after an on-the-job injury. In almost every situation, workers’ compensation is the sole mode of recompense available to the injured party. However, there are two main exceptions to the exclusive remedy provision. The first requires that an intentional act be committed against the injured worker and the second requires that the employer does not hold workers’ compensation insurance. Even if your situation does not meet either of these exceptions, you may still have options through the workers’ compensation system.

Hillsberg Law

My name is Geoffrey Hillsberg, and I have focused my practice on Pennsylvania worker’s compensation law since 1995. If you have been injured on the job, please contact my law office today. I will put my decades of experience to work for you and your right to compensation.

The advice offered above is general in nature and may not be applicable to every case. Consultation with an attorney is highly recommended. Reliance on this advice does not represent the formation of an attorney-client relationship in the absence of a fee agreement with Mr. Hillsberg.

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