Do You Know the Rule?
In Rhode Island, an employee may preserve the right to sue for negligence by giving her employer written notice at the time of hire that she is reserving the right to pursue tort remedies. R.I. Gen. Laws § 28-29-17.
If the employee does not preserve her common-law rights, Rhode Island’s exclusive remedy provision (R.I. Gen. Laws § 28-29-20) usually bars the employee from suing. Her sole remedy is workers’ compensation.
Must be done in advance
A worker can preserve the right to sue the employer for a work-related injury only by opting out of workers’ compensation exclusivity in advance. The worker may not wait until after an injury occurs and then attempt to opt out of workers’ compensation.
Steps employee must take to preserve right to sue
To opt out of workers’ compensation and preserve the right to sue, the employee must:
- Give written notice to the employer at the time of hiring stating that the employee reserves her common-law rights.
- Send a copy of that notice to the Director of Labor and Training within ten days after giving notice to the employer
Type of notice
An employee who intends to opt out of workers’ compensation must complete, sign in front of a notary public, and submit Form DWC-11 (Notice of Claim of Common Law Right). This must be submitted to the Rhode Island Department of Labor and Training (DLT), Workers’ Compensation Unit.
Timing of notice
The employee generally must submit the notice at the time of hiring. However, if the employee secures workers’ compensation coverage after the hiring date, or the employee becomes subject to workers’ compensation after hiring, she must provide the notice within 10 days of that change.
Reversal of waiver
An employee who has successfully opted out can reverse the process if he decides he wants to be covered by the workers’ compensation system. To do so, she files another written notice to the DLT director and the employer. The notice takes effect five days after filing.
Case examples
Carson v. 3M Company, No. PC-2011-1046 (R.I. Super. Ct. 10/22/18)
A deceased ExxonMobil died of mesothelioma. His wife sued the company for negligence, arguing that his work exposed him to asbestos and caused him to develop and die from the disease. The court said that absent a waiver by the decedent in accordance with § 28-29-17, he was subject to the WCA during his employment with ExxonMobil. His wife failed to produce evidence of such a waiver. The court ruled that there was no issue of material fact concerning whether decedent was subject to the WCA, and that the wife’s sole remedy was workers’ compensation.
Kulawas v. Rhode Island Hospital, 994 A.2d 1223 (R.I. 2010)
An administrative secretary at a hospital was walking down a corridor on her way to lunch when she fell and injured herself. The parties entered into a worker’s compensation settlement which stated that the injury did not occur in the course of employment. Believing that this wording meant she had preserved her common law right to sue, she sued the hospital for negligence. The court said that because the employee chose to seek a remedy within the workers’ compensation system and had not filed a written waiver to preserve her common-law rights when she was hired, her lawsuit was barred by the exclusive remedy provision.
