However, there are many other ways in which the exclusive remedy of Workers' Compensation can be circumvented. These include:

Statutory exceptions – New York employers in the building trades are still exposed to civil litigation in addition to Workers' Compensation under the Scaffold Law. This allows workers in the construction industry to file suit against their employer if the injury arose from an "elevation-related hazard." New York is currently the only state that still has such legislation in place, with Illinois repealing their Structural Work Act in 1995.

Third-party-over actions – Some states allow civil litigation surrounding a work injury under a third-party-over action. In such cases, the employee sues a third party for contributing to their injury and then the third party brings in the employer on a contributory negligence action. For example, if an accident involves machinery, the machine manufacturer can bring the employer into the suit alleging that they inadequately trained their employees, that the machine was not properly maintained, or that it was modified by the employer.

Dual capacity suits – Dual Capacity Suits allow the employee to sue their employer as supplier of a product, provider of a service or owner of premises. For example, if a worker is injured using a machine manufactured by their employer, some states allow that injured employee to file suit against the employer based on their negligence as the manufacturer.

RICO suits – Filing claims under the Racketeer Influenced and Corrupt Organizations Act (RICO) is a more recent method to attempt to avoid exclusive remedy protections. These federal laws were originally designed to fight organized crime. In Michigan, Colorado and Arizona, the courts allowed injured workers to pursue a RICO complaint against their employer on the grounds that the employer "conspired" to deny medical treatment to injured workers by limiting physician referrals, prescribing practices and exercising undue influence over treating physicians.

Constitutional challenges – Constitutional challenges are the latest avenue for attempting to circumvent exclusive remedy protections. There was much attention given to the Padgett case in Florida where a judge ruled that the Workers' Compensation statutes were unconstitutional because statutory changes that reduced benefits to workers and raised thresholds of compensability had eroded the "grand bargain" to the point that it was no longer valid. This case was reversed on appeal because of a technicality so the higher courts never ruled on the merits of the argument.

Is no fault really no fault?

Special Reports /

Challenges to the grand bargain of Workers' Compensation