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D is corrent because acceptance of workers’ compensation does not bar suit against a third party whose negligence caused the injury. However, if the employee recovers from the third party, he is required to reimburse his employer to the extent that the recovery duplicates the benefits already received from workers’ compensation.
A is incorrect because the employee’s acceptance of workers’ compensation benefits does not bar a suit against a third party whose negligence caused the injury.
B is incorrect because the employee (Fairfax) can maintain his own cause of action for negligence; he does not have to assign the cause of action to his employer (Wexford). But an employer is subrogated to the employee’s claim against a third party if the employee accepts workers’ compensation benefits. Therefore, the employer could maintain a cause of action against the third party if the employee did not. The doctrine of respondeat superior has no relevance to the situation in question since it refers to the employer being held liable for employee’s torts if they are within the scope of his employment and committed during the course of his duties.
C is incorrect because if the employee recovers from a third party, his employer is entitled to the return of the benefits he paid to the employee.