Can I Sue My Employer if I Get Hurt at Work? 

construction worker hurt at work and holding shoulder

West Virginia workers often wonder, “Can I sue my employer if I get hurt at work?” In limited cases, yes, you may be able to sue your employer for medical bills, lost wages, and other damages not covered by workers’ compensation. The experienced attorneys at our leading West Virginia personal injury law firm have been helping injured workers for decades. Our goal is to help you obtain the full and fair compensation you deserve, whether through a workers’ compensation claim or a third-party liability lawsuit.  

We know how to sue employers for workplace injuries in West Virginia. We have recovered millions for our injured clients and want to help you too. In this article, we’ll explain when you can sue your employer for a workplace injury and what steps you should take to protect your rights. Our attorneys are known for aggressively advocating for our clients. We are dedicated to helping them secure the justice, accountability, and compensation they are entitled to under the law.  

When Should You File a Work Injury Lawsuit vs. A Workers' Compensation Claim?

Suing for injuries at work in West Virginia is tricky. Employers in the state are required to carry workers’ compensation insurance to protect their employees in case of a work-related injury or illness. If you get hurt at work, you can file a workers’ compensation claim to receive medical care coverage, partial wage replacement, and other benefits, regardless of who was at fault for your injury. 

In exchange for these guaranteed benefits, the workers’ compensation system generally prohibits employees from suing their employers for injuries. This “exclusive remedy” rule means that, in most cases, you cannot bring a personal injury lawsuit against your employer for additional damages. 

However, there are potential workarounds to the rule in cases involving: 

  • Deliberate intent by the employer to cause injury. 
  • Third-party liability when someone other than your employer caused your injury. 
  • Employer failure to maintain mandatory workers’ compensation coverage. 
  • Injuries caused by defective or faulty machinery, products, equipment, or tools. 
  • Illness or injury caused by toxic exposure in the workplace. 

If one of these exceptions applies in your case, you may be able to file a work injury lawsuit against your employer or third parties to potentially recover compensation for a broader range of damages than what’s available through workers’ compensation, including pain and suffering.  

Understanding Deliberate Intent in West Virginia

The clearest exception to the exclusive remedy rule is the “deliberate intent” rule, which allows you to sue your employer for a work-related injury if you are able to show that they intentionally harmed you.   

More specifically, West Virginia Code §23-4-2 states that an employer may be held liable in a civil lawsuit if “it is proved that the employer or person against whom liability is asserted acted with a consciously, subjectively, and deliberately formed intention to produce the specific result of injury or death to an employee.” 

In other words, you must show that your employer had actual knowledge of a specific unsafe working condition and intentionally exposed you to harm. This is a very high legal standard, and most workplace accidents will not meet the criteria for deliberate intent. To prove deliberate intent, you must establish the following five elements: 

  • A specific unsafe working condition presented a high degree of risk and a strong probability of serious injury or death. 
  • The employer had actual knowledge of the existence of the unsafe condition. 
  • The unsafe condition was a violation of a state or federal safety statute, rule, regulation, or commonly accepted and well-known safety standard within the industry. 
  • The employer intentionally exposed you to the unsafe working condition. 
  • The unsafe condition caused your injury. 

If you can prove all five elements, you may be able to successfully bring a deliberate intent lawsuit against your employer and recover damages not available through workers’ compensation, such as pain and suffering.

Do I Have a Work Injury Lawsuit?

We regularly get questions from our clients wondering if they can sue if they got hurt at work. The answer depends on the specific circumstances of your case. To determine if you have grounds for a work personal injury lawsuit, there are several key factors to consider: 

Step 1: Check for Workers' Compensation Coverage 

In most cases, work-related injuries are covered by workers’ compensation, which provides benefits to employees hurt in the course of and resulting from employment. However, there are limited circumstances where you may be able to bring a lawsuit against your employer outside of the workers’ compensation system

The first step is determining whether your employer has workers’ compensation coverage. In West Virginia, all employers are required to provide workers’ compensation insurance. If your employer purchased their required coverage, you will likely need to file a workers’ compensation claim rather than a lawsuit. 

Step 2: Check if Your Employment Status Allows You To Sue

Your employment status can also impact your right to sue your employer for a work-related injury. Independent contractors and certain other types of workers are generally not covered by workers’ compensation, which means they may be able to bring a personal injury lawsuit instead when they’re hurt on the job. 

Determining whether you are an employee or independent contractor is legally complex. If you are uncertain, our workplace accident attorneys can help. Under West Virginia law, a person is classified as an independent contractor if they meet the following basic criteria: 

  • They sign a written contract with the principal that states an intent to engage the person as an independent contractor and acknowledges that the person understands they are not an employee and will not receive benefits. 
  • They file income tax returns as a business or self-employed individual or provide their contract services through a business entity. 
  • They control the manner and means by which the work is accomplished, even though they may not control the final work product. 
  • They satisfy three or more additional criteria related to control over their work, such as setting their own hours, working for multiple clients, hiring assistants, maintaining business licenses, and so on. 

The main differences between independent contractors and employees are: 

  • Independent contractors have more control over how they perform their work and are not subject to the same level of control by the principal. 
  • Independent contractors are not provided with workers’ compensation, unemployment benefits, or other employee benefits. 
  • Independent contractors are responsible for paying their own taxes and are not subject to tax withholding by the principal. 
  • Independent contractors typically work for multiple clients and are not required to work exclusively for one principal. 

Workers who do not meet the criteria for independent contractors are classified as employees under West Virginia law. However, meeting the criteria does not automatically make a worker an independent contractor, as the principal can still choose to hire them as an employee. 

Step 3: Determine if a Valid Third-Party Liability Claim Exists

Even if you’re covered by workers’ comp, you may have a valid third-party liability claim if your injuries were caused by someone other than your employer or a co-worker. Examples of potentially liable third parties include: 

  • Manufacturers of defective equipment or machinery 
  • Negligent drivers who cause accidents while you’re working   
  • Property owners who fail to maintain safe premises 

If a third party caused or contributed to your work-related injuries, you may be able to bring a separate personal injury lawsuit against them while still receiving workers’ compensation benefits. If you feel you may have grounds for a lawsuit or simply want to explore your legal options, contact Warner Law Offices. We are passionate about representing hardworking West Virginians.  

"In the early part of my career, I had a lot of friends who were blue-collar guys. I became very passionate about representing workers who were exposed to unsafe working conditions. If, unfortunately, you were involved in a work-related injury case, I would strongly encourage you to consider Warner Law Offices."

Contact Our Attorneys for Help With Your Work Injury Claims

If you were hurt on the job in West Virginia, you may have the right to file a work injury lawsuit against your employer. The skilled legal team at Warner Law Offices is here to help you explore your legal rights and options. 

Contact us online or call (304) 345-6789 to schedule a free, confidential consultation. We represent injured workers on a contingency fee basis, which means you won’t owe any attorney fees unless we recover compensation for you. 

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Attorney Bobby Warner
Content Reviewed by:
Bobby Warner

Bobby has received many accolades throughout the years from both his peers in the legal community, as well as the media. The National Trial Lawyers association named Bobby a Top 100 Trial Lawyer and he has been selected as a Member of the Nation’s Top One Percent. Additionally, he has been named a Best Attorneys of America by Rue Ratings, which also named Warner Law Offices to its Best Law Firms of America.