Ayers, Whitlow & Dressler

The Personal Injury, Worker’s Compensation and Social Security Disability Group of Sellers, Ayers, Dortch and Lyons.

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Does the "dual capacity" theory apply to workers' compensation?

Workers' compensation offers what can broadly be thought of as a "win-win" outcome for injured workers and their employers: the worker benefits from having a relatively speedy forum through which to receive benefits for lost income and for medical expenses, while the employer has a way to avoid being the subject of lawsuits by workers who are hurt on the job. This outcome is the product of what can be called the "exclusivity rule": for work-related injury claims, under North Carolina law workers' compensation is the sole remedy for monetary recompense.

The exclusivity rule, however, has come under challenge in some situations. These usually involve a situation which the worker is injured, or experiences a subsequent injury, in a way that the employer may be thought of as having two distinct functions: one as an employer, and the other in a non-employer capacity. For example, if an injured worker is receiving treatment at a company-owned and operated medical facility and experiences a subsequent injury while undergoing treatment, the worker may believe that in addition to workers' compensation benefits it may also be possible to pursue a legal claim against the employer for medical malpractice in connection with the second injury.

This theory of having more than one claim against the employer is known as the "dual capacity" doctrine. It has been tried in North Carolina on multiple occasions, but so far has had no discernible success in court at either the state or federal levels. So for the time being, at least, the exclusivity rule remains the law in this state. Workers who have workers' compensation claims would be well advised to retain a law firm experienced with this area of law to secure the best benefit claim possible under the workers' compensation system before attempting to file a separate lawsuit against their employer, although third-party claims against individuals and companies other than the employer remain a viable possibility.

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