Negligence In Workers Comp And Exclusive Remedy

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Term of the Day – Negligence

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The Workers Comp term for today talks about the different definitions of negligence. I was taught this definition a long time ago and it has always stuck with me. Negligence= duty owed + duty breached – contributory.

Dictionaries define it as “the failure to use reasonable care, resulting in harm to another.” It is basically used to get compensation for injuries and damages from someone who fails to protect another person from avoidable harm.

There are many different types

  • Contributory Negligence, which I used in my definition, bars the plaintiff from recovering any damages if they are found in any way to be responsible for causing their own injuries, even if the defendant was negligent as well.
  • States are either Contributory or Comparative Negligence jurisdictions. In Comparative , it is first decided how much fault each person has. The amount of damages is then portioned out between them, each paying only their ratio of fault. For example, if the plaintiff is found to be responsible for 10% of their own injuries, the defendant is required to pay the remaining 90% of the damages.

The basic definition of Workers Compensation insurance removes most negligence with a workers compensation injury.   The employer cannot say that an injured employee was contributory negligent to deny or diminish benefits.  The injured employee cannot pursue legal action outside of the Workers Comp claim against the employer – better known as exclusive remedy.   However, this does not remove possible responsible third parties from negligence. 

Update  2018 – Wisconsin just ruled that employers can be held negligent in Workers Compensation. 

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James Moore

Raleigh, NC, United States

About The Author...

James founded a Workers’ Compensation consulting firm, J&L Risk Mgmt Consultants, Inc. in 1996. J&L’s mission is to reduce our clients’ Workers Compensation premiums by using time-tested techniques. J&L’s claims, premium, reserve and Experience Mod reviews have saved employers over $9.8 million in earned premiums over the last three years. J&L has saved numerous companies from bankruptcy proceedings as a result of insurance overpayments.

James has over 27 years of experience in insurance claims, audit, and underwriting, specializing in Workers’ Compensation. He has supervised, and managed the administration of Workers’ Compensation claims, and underwriting in over 45 states. His professional experience includes being the Director of Risk Management for the North Carolina School Boards Association. He created a very successful Workers’ Compensation Injury Rehabilitation Unit for school personnel.

James’s educational background, which centered on computer technology, culminated in earning a Masters of Business Administration (MBA); an Associate in Claims designation (AIC); and an Associate in Risk Management designation (ARM). He is a Chartered Financial Consultant (ChFC) and a licensed financial advisor. The NC Department of Insurance has certified him as an insurance instructor. He also possesses a Bachelors’ Degree in Actuarial Science.

LexisNexis has twice recognized his blog as one of the Top 25 Blogs on Workers’ Compensation. J&L has been listed in AM Best’s Preferred Providers Directory for Insurance Experts – Workers Compensation for over eight years. He recently won the prestigious Baucom Shine Lifetime Achievement Award for his volunteer contributions to the area of risk management and safety. James was recently named as an instructor for the prestigious Insurance Academy.

James is on the Board of Directors and Treasurer of the North Carolina Mid-State Safety Council. He has published two manuals on Workers’ Compensation and three different claims processing manuals. He has also written and has been quoted in numerous articles on reducing Workers’ Compensation costs for public and private employers. James publishes a weekly newsletter with 7,000 readers.

He currently possess press credentials and am invited to various national Workers Compensation conferences as a reporter.

James’s articles or interviews on Workers’ Compensation have appeared in the following publications or websites:

  • Risk and Insurance Management Society (RIMS)
  • Entrepreneur Magazine
  • Bloomberg Business News
  • WorkCompCentral.com
  • Claims Magazine
  • Risk & Insurance Magazine
  • Insurance Journal
  • Workers Compensation.com
  • LinkedIn, Twitter, Facebook and other social media sites
  • Various trade publications

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