Suing Over a Work Injury in Vermont

Generally no. Workers' compensation rights and remedies exclude all other rights and remedies of the employee, personal representatives, dependents or next of kin against the employer, at common law or otherwise. The statute's exceptions are the worker's right to sue an employer that failed to carry required insurance (21 V.S.A. § 618(b)) and claims against third parties under § 624.

Yes. Taking workers' comp is not an election of remedies; the injured worker may also sue a third party legally liable for the injury. If the worker does not sue within one year after the injury, the employer or its insurer may sue in the worker's name within the statute of limitations. At least 30 days before suing, the party bringing suit must notify by registered mail the Commissioner of Labor, the worker (or dependents), the employer and the insurer; the worker controls the suit. After expenses, the recovery first reimburses the employer or insurer for benefits paid, and the balance goes to the worker as an advance against future benefits; if the recovery is less than the claim's full value, reimbursement is limited to the portion allocated to damages covered by workers' comp.

A worker injured while working for an employer that failed to carry required workers' comp insurance may choose to claim workers' comp or sue the employer for full damages. In the lawsuit the employer must prove the injury did not result from its negligence, and it may not defend on the grounds of a co-worker's negligence, the worker's assumption of risk, or (unless the worker's negligence was willful and intended to cause injury) the worker's comparative negligence; the suit must be filed within three years. The Commissioner can fine an uninsured employer up to $100 a day for the first seven days and $150 a day after that, issue a stop-work order, and add penalties of up to $250 a day and $250 per employee per day.