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If an employee is injured during the course of employment, that employee, in most circumstances, will receive scheduled workers’ compensation benefits. However, what happens if the employee is pregnant at the time of injury, and the fetus is injured in the same accident? Does the fetus have a right, after birth, to sue the employer for his injuries, or does the exclusive remedy of the workers’ compensation system prevent any such lawsuit?

With millions of pregnant women on the job these days, the issue of in utero injuries has implications for employers and their liability insurance coverage. The standard workers’ compensation and employer’s liability insurance policy provides that the insurer will pay all sums that the named insured employer legally must pay as damages for consequential bodily injury to a child of the injured employee, provided that these damages are the direct consequence of bodily injury to the employee in the course of employment. What this means is that the employer’s liability insurance policy will pay for injuries to a child if the child’s claims are deemed to derive from the employee/parent’s work-related injuries. As an example, if the pregnant mother is exposed to lead paint during the course of employment, she is injured by being so exposed, and the fetus is injured by being exposed to the same poisonous condition. The fetus suffers bodily injury as a consequence of the mother’s work-related injury, and any bodily injury claims that the child may make after birth are handled under the terms of the employer’s liability policy.

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