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Nickels v. Napolilli8/17/2001
(2) "maintain an action against the employer at law . . . for damages on account of the injury or death."
If the injured employee brings a claim before the Alaska Workers' Compensation Board, that employee has available the same benefits that would have been provided if the employer had complied with the statute by having workers' compensation insurance.
If, on the other hand, an injured employee chooses to bring a lawsuit against the employer under AS 23.30.055, the workers' compensation statute enhances the opportunity for recovery and removes many of the limitations on compensation ordinarily imposed. First, in an action at law against the non-compliant employer, the statute shifts the presumption of negligence. " t is presumed that the injury to the employee was the first result growing out of the negligence of the employer and that the employer's negligence was the proximate cause of the injury; the burden of proof rests upon the employer to rebut this presumption of negligence." Additionally, in a lawsuit under this provision, the employer does not enjoy the limitations on liability otherwise imposed by the workers' compensation statutory scheme. Finally, an employer may not raise defenses of contributory or comparative negligence, negligence of fellow employees, or assumption of risk. Thus, the workers' compensation statute, which carefully balances the rights and responsibilities of employees and employers, tips the scales in favor of an injured employee when the employer does not provide workers' compensation benefits and the employee chooses to sue for damages for the injuries. In this way, the Act allows the employee who has suffered injury resulting from the employer's negligence to recover damages above and beyond the compensation that would have been available had the employer provided workers' compensation insurance.
The workers' compensation statute specifies the two remedies for employees whose employers have failed to provide workers' compensation benefits. We have recognized that " n substituting certainty of compensation for the hazards of litigation of work-related injuries, it is too clear to require discussion that the ct was intended to comprehend and govern all the interacting relations of employee, fellow employee and employer." Therefore, the remedies offered by the workers' compensation statute supercede any common law remedies outside of the statutory scheme.
2. A worker 's lawsuit under AS 23.30.055 must be a tort action for the underlying injury.
When an employer breaches the duty to provide workers' compensation benefits, the Alaska Workers' Compensation Act permits the worker to file a lawsuit against the employer for "damages on account of the injury or death." The Act's language reflects an intent to provide a remedy for a worker's personal injuries. It specifies the following relief when an employer has failed to provide compensation:
f an employer fails to secure payment of compensation as required by this chapter, an injured employee . . . may elect to claim compensation under this chapter, or to maintain an action against the employer at law or in admiralty for damages on account of the injury or death. In that action the defendant may not plead as a defense that the injury was caused by the negligence of a fellow servant, or that the employee assumed the risk of the employment, or that the injury was due to the contributory negligence of the employee.[ ]
In her complaint, Nickels initially claimed that the Napolillis "actively and intentionally misrepresented . . . her right to receive workers' compensation benefits, including medical care." Yet, on the eve of trial, Nickel
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