Virginia Workers' Compensation Accident: Why not sue your employer?

by Jerry Lutkenhaus on Apr. 10, 2014

Employment Workers' Compensation 

Summary: You have an accident on the job. You think your employer is at fault and you want to sue him. Can you do this?

The Virginia Workers' Compensation Law was adopted in 1918. The law provides compensation for lost wages and medical benefits. The common law right to sue the employer for the work place injuries in Virginia was abolished. However, the employer lost the right to defend the accident on the basis of the worker’s contributory negligence or assumption of risk. Also, the worker did not have to prove the employer’s negligence caused his injury. As noted by the Virginia Supreme Court in Feitig v. Chalkey, 185 Va. 96 (1946), the principles of the Virginia Workers’ Compensation Law have been accepted by practically all of the States in the United States.

The principle restriction on recovery in a workers’ compensation case is that you cannot recover "pain and suffering" as you can in a personal injury case. The principle benefit may be a speedier but smaller recovery without resorting to costly litigation.

Of course, if the injury results from the actions of a third party, the worker can file a personal injury action against the third party provided the third party is not a co-employee. The usual example of this is if the worker is driving a company vehicle which is negligently struck by a driver of another vehicle. In this situation, the worker would have a workers compensation claim against his employer and a personal injury claim against the driver of the other vehicle. Also, if the injury was caused by defective equipment, then the worker could sue the manufacturer of the machine and workers compensation would not be a bar to this kind of product liability lawsuit.

In my workers' compensation practice, potential clients often ask "Why can’t I sue my employer for my injury?" The only response I can make is that the State of Virginia in 1918 like the other States in the United States at about this time decided that industry and labor were better served if employers were required to provide workers’ compensation insurance as a cost of doing business rather than the worker having to rely on the uncertainty of personal injury lawsuits. Thus, in almost all Workers Compensation Cases, you do not have a personal injury case as an additional remedy.

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This may be considered AN ADVERTISEMENT or Advertising Material under the Rules of Professional Conduct governing lawyers in Virginia. This note is designed for general information only. The information presented in this note should not be construed to be formal legal advice nor the formation of a lawyer/client relationship. Gerald G. Lutkenhaus has been representing Workers Compensation Claimants in the Central Virginia Area for over 30 years. He received Martindale-Hubbell's highest rating in 2003, for more information check our website at or

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