Torts and Workers’ Compensation

California’s workers’ compensation system is designed to protect both the employee and the employer.  The employee is protected because the law provides that if he or she sustains a work-related injury in the course and scope of employment, he or she will be entitled to receive compensation for a variety of things, ranging from medical expenses to biweekly payments for permanent disability.  The employer is protected because there is a system in place to reduce incidences of fraud, ensure that the expectation for reasonable accommodations is clear, and it clear that not all workers are actually covered under workers’ compensation.  The workers’ compensation system is a “no fault” system, which means that the employee is not required to show the employer was at fault for the injury.  California labor code 3600 also provides that the exclusive remedy for an employee injured and seeking compensation is to purse a workers’ compensation case.  In other words, the employee cannot generally sue the employer for negligence or other civil torts.  All of the essential conditions contained in labor code 3600 must be met in order for the rule to apply.

Like so many other areas of law, however, there are exceptions to the exclusive remedy rule.  One exception is called “dual capacity.”  This exception acknowledges that an employee may have multiple different duties toward the employer.  If the injury arises out of an incident that was independent of the employment relationship, the employee may sue the employer.  Another exception is fraudulent concealment.  This will apply where the employer fraudulently conceals the worker’s injury and its connection to the employment, and the concealment exacerbates the injury.  This exception is typically seen in cases involving exposure to toxic chemicals, mold, or asbestos.  A third exception is employer assault or ratification.  This exception provides that although an employer is not typically responsible for injuries sustained when one employee assaults another, the injured employee may bring a civil suit if the employer took affirmative steps by either ratifying the conduct of the assaulting employee or by assaulting the employee. The next exception is for power press machines.  These machines are any material forming machine which uses a die to press, impact, punch, stamp, or extrude material.  A power press does not include the machines that simply cut material with a blade.  If an employer removes the guard on the press or fails to maintain the guard, an injured employee may sue the employer.  Finally, an employee may bring a civil suit against the employer when the employer has failed to obtain and maintain workers’ compensation insurance in accordance with California law.  This type of suit could allow for an injured employee to obtain workers’ compensation benefits while also recovering for negligence.

We have extensive experience with the workers’ compensation system and all types of associated litigation.  Contact us today for a consultation.

Torts versus Workers’ Compensation – Can My Employees Sue My Business?

The workers’ compensation system is designed to provide a method by which an employee who sustains a work-related injury may obtain reimbursement for medical care and disability payments.  California is a “no fault” workers’ compensation system, so even if the employer or employee is not “at fault” for the work-related injury, an employee may still recover expenses and disability payments.  This is different than if the employee were to file a civil claim for negligence or an intentional tort.  In that sort of case, an employee would be required to go before a judge and prove the elements of his or her claim, which would always include a degree of fault on the employer’s part.  In the vast majority of cases, if an employee is injured at work, he or she is required to go through the workers’ compensation system in order to recover for the cost of injuries or obtain payment for temporary or permanent disability.  However, there are some limited situations in which an employee may choose to go outside the typical workers’ compensation system.


The type of suit that an employer should be most cautious of in this sort of situation is where an employee alleges that his or her injuries were caused by Serious and Willful misconduct on the part of the employer.    For example, if an employer is fully aware that using a certain chemical will cause injury to the employees working with the chemical but fails or even refuses to provide safety equipment for the employees, a Serious and Willful cause of action could be appropriate.  Clearly to combat this sort of claim, an employer should take all reasonable steps to make sure employees are safe and have the safety gear needed.  Employers should also speak with an experienced workers’ compensation attorney about “serious and willful” claims under the California Labor Code and how these claims can be avoided and defended.


An employee could also choose to sue a third party, meaning someone other than the employer.  An employee could choose to sue a contractor, a vendor, or the manufacturer of a faulty product.  If this is the case, the employer may want to get involved in that suit under the theory of subrogation in order to reduce any costs to the employer pursuant to any serious and willful claim made by the employee.


Workers’ compensation can be complicated, and it can seem even more so when an employee chooses to file an additional suit outside the system.  If you have questions about your business and how a civil suit interacts with workers’ compensation, call me today at (714) 516-8188.  I am experienced in helping my clients navigate these situations and look forward to talking with you about your business and possible solutions.

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