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H.349

Introduced by   Representative Obuchowski of Rockingham

Referred to Committee on

Date:

Subject:  Labor; workers’ compensation; employer liability; civil action

Statement of purpose:  This bill proposes to provide an injured employee with the choice of damages from workers’ compensation or a civil action when the injury occurred as the result of the employer’s willful disregard of obvious dangers inherent in the employment duties.

AN ACT RELATING TO EMPLOYER LIABILITY AND CIVIL ACTIONS AND WORKERS’ COMPENSATION

It is hereby enacted by the General Assembly of the State of Vermont:

Sec. 1.  21 V.S.A. § 618 is amended to read:

§ 618.  COMPENSATION FOR PERSONAL INJURY

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(b)  A worker who receives a personal injury by accident arising out of and in the course of employment with an employer who has failed to comply with section 687 of this title may elect to claim compensation under this chapter or to bring a civil action against the employer for full damages resulting from the work injury.  In the civil action, the employer has the burden of proving that the injury did not result from the employer’s negligence and that the employer’s negligence was not the proximate cause of the injury.  The employer may not plead as a defense any of the following:

(1)  The injury was caused by the negligence of a fellow-employee.

(2)  The defense provided under 12 V.S.A. § 1036 unless the negligence was willful and with the intent of causing an injury.

(3)  The employee assumed any risk in the employment.

(c)  A worker who receives a personal injury by accident arising out of and in the course of employment may elect to claim compensation under this chapter or bring a civil action against the employer for an injury that resulted from all the following conditions:

(1)  The employer had knowledge of a dangerous process, procedure, instrumentality, or condition within the business operation.

(2)  The employer had knowledge that there is a substantial certainty that an employee who in the course of employment activities is exposed to the circumstances described in subdivision (1) of this subsection would suffer an injury.

(3)  Despite the knowledge by the employer of the circumstances in subdivisions (1) and (2) of this subsection, the employer required the employee to perform those employment tasks.

(d)  A worker shall commence a civil action under subsection subsections (b) and (c) of this section within the three year three‑year limitation period as provided in 12 V.S.A. § 512(4).

(d)(e)  The acceptance of any payment by an employee for a work injury shall not bar a subsequent election to pursue a civil suit under subsection (b) of this section unless the employee, with knowledge of his or her rights, signs a written agreement waiving the right to pursue a civil action.  The agreement shall be filed with and approved by the commissioner.  If the employer fails to pay any amount due and owing under the workers’ compensation act the waiver agreement shall be void and the employee may pursue a civil action.

(e)(f)  Any employee who prevails in a civil action under subsection (b) or (c) of this section shall be entitled to costs, interest from the date of filing the claim, and reasonable attorneys’ attorney fees.



Published by:

The Vermont General Assembly
115 State Street
Montpelier, Vermont


www.leg.state.vt.us