By: William M. Berman, Attorney at Law
CALIFORNIA WORKERS’ COMPENSATION LAW – All too often injured workers do not receive the full compensation they are entitled to under California law. Pursuing a workers’ compensation claim in many cases may not be the only remedy available for a worker who gets hurt on a job site. Because the workers’ compensation system provides severe limitations on the amount of recovery, it is extremely important to understand exactly how the workers’ compensation laws operate so that if you are in fact injured at work (or “on the job”) you do not overlook other much more valuable potential third-party civil claims against responsible parties who may not be subjected to limited damages under the workers’ compensation system.
As a general rule, an injured worker’s remedies against the employer or a co-employee are limited by the available remedies under the body of law known as workers’ compensation law. In other words, in these situations workers’ compensation is the “exclusive remedy.” From the worker’s perspective the workers’ compensation laws are advantageous in that the worker does not need to show any fault on the part of the employer in order to recover. However, the significant disadvantage from the perspective of injured workers is the limited amount of compensation that is recoverable. Therefore, in order to maximize recovery it may be best to avoid these limits and bring a traditional personal injury lawsuit.
Broadly speaking, the exceptions to the exclusive remedy rule generally fall into two categories, either claims that are outside of the workers’ compensation system, or exceptions to the workers’ compensation regime provided in statutes. Each of the below exceptions are examples of ways around the workers’ compensation limits.
Nonemployee Third Parties – The workers’ compensation laws do not prevent employees from bringing traditional civil lawsuits against third parties (meaning parties other than the employer and co-employees) who engaged in misconduct which contributed to the injury. In the context of a construction site this is likely to come up with many different people and companies working on the same location. For example, a contractor may be performing roof repairs on the building of the employer and drop something on a worker, or an independent company delivering supplies may injure employees by hitting them.
Products Liability Actions – When a worker is injured by unreasonably dangerous or defective equipment, or due to insufficient warnings regarding the equipment, the injured worker may sue the third parties such as the distributor, manufacturer, or installer of the equipment.
Dangerous Conditions on Premises – An owner or lessor of land can be liable for dangerous conditions on the property, regardless of whether it is a natural or artificial condition. In the context of a construction site, for example, the landowner may be liable if there are injuries, even if the landowner retained no control and provided no equipment. The duty of the landowner is to inspect, maintain, and warn those foreseeable users who will be on the land of any dangers.
Uninsured Employer – Although obtaining workers’ compensation insurance is mandated by California law, some places of employment fail to obtain it. If that is the case an injured worker is authorized to bring a civil lawsuit against the employer. In such a situation the worker also has the benefit of a legal presumption that the employer was negligent, and the employer’s defenses are limited. For example, employers in this situation cannot use comparative negligence, assumption of the risk, or co-employee negligence as defenses.
Assault by Employer – When workers have been intentionally physically assaulted by their employers (and in some cases fellow employees) the workers are authorized to bring a traditional civil lawsuit and are not limited by workers’ compensation rules.
Fraudulent Concealment that Makes Injury Worse – If an employer “fraudulently conceals” (hides) from employees the existence of an injury that the workers have sustained in connection to employment the workers can sue outside of workers’ compensation limits. An example is a workplace that conceals the fact that workers were breathing dangerous chemicals.
Removal of Power Press Guard – If an employer removes a guard on a piece of machinery used to construct certain materials an injured worker can bring a personal injury lawsuit and will not be limited to workers’ compensation. In order for this exception to apply the manufacturer must have supplied the guards and the employer knowingly removed them or failed to install them.
As all of the above examples illustrate, there are many ways to get around the workers’ compensation system. An injured worker should not assume that a workplace injury necessarily is limited to workers’ compensation recovery. A creative personal injury attorney will be able to analyze the particular facts, evaluate alternative theories of liability, and possibly bring a personal injury lawsuit. William Berman is a lawyer at the firm Berman & Riedel, LLP, which has a long track record of obtaining exceptional compensation for injured workers.