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Defeat the "Exclusive Remedy” Rule

How Can You Defeat the Workers' Compensation “Exclusive Remedy” Rule?

In most states, including California, workers' compensation is considered an “exclusive remedy” for workplace injuries.

Under this rule, if you are injured at work, your employer's workers' compensation insurance covers your medical expenses, lost wages, and other related expenses. In return, you forfeit your right to sue your employer.

Defeating the Workers’ Compensation “Exclusive Remedy” Rule
If injured at work, you can get worker’s compensation or a tort recovery, called "exclusive remedy."

In other words, the Workers' Compensation program is a compromise where the employer provides insurance coverage for injuries occurring in the workplace regardless of fault in exchange for the employee's waiver of tort liability. 

The basic rule of worker's compensation is that you either get workers' compensation or have a right to tort recovery, known as an exclusive remedy.

Under this theory of exclusive remedy, the injured worker waives their tort claims against their employer and co-workers.  Simply put, they can't sue their employer, but it does not apply to third parties, defined as any party from whom workers' compensation cannot be recovered.

Labor Code Section 3600 provides all the conditions for the exclusive remedy rule to apply, but there are exceptions. For example, the exclusive remedy rule sometimes does not apply, and an injured employee could assert a civil claim against their employer for a work-related injury.

What Are the Exceptions?

Suppose workers' compensation doesn't fully cover your losses. What if the pain and suffering caused to you and your family extend beyond just your physical injuries?

Exceptions to California's Exclusive Remedy Rule
California recognizes some specific exceptions that enable you to fight the “exclusive remedy” rule.

If you take the “exclusive remedy” rule to heart, you're basically out of luck. The only compensation you're entitled to is whatever workers' compensation covers.

However, as noted, there are exceptions. The State of California recognizes five specific exceptions that enable you to fight the “exclusive remedy” rule. If your case includes one of these exceptions, you can sue your employer for damages in addition to workers' compensation benefits.

It is essential for lawyers who represent injured workers to be familiar with these exceptions because civil claims significantly broaden the compensation available to clients.

While the workers' compensation system provides medical care and disability benefits, its remedy is limited to a compromise of a no-fault system. Exceptions to the exclusive remedy rule for actions against the injured worker's employer include the following:

  • employer assault,
  • fraudulent concealment,
  • uninsured employer,
  • dual capacity,
  • power press.

If one of these exceptions applies, the worker has a right to maintain a civil suit against the employer concurrently with a workers' compensation claim. Let's take a closer look at some of these exceptions below.

Intentional Injury Exception

If your employer intentionally attacked or assaulted you, or if a fellow employee intentionally injured you with the knowledge and consent of the employer, then you are not bound by the “exclusive remedy” rule.  

This is covered under Labor Code 3602(b)(1), which says, “Where the employee's injury or death is proximately caused by a willful physical assault by the employer.”

You can file a personal injury lawsuit against your employer to seek compensation for pain and suffering, punitive damages, and other non-economic losses in addition to what workers' compensation covers.

To prove that your employer intentionally attacked or assaulted you, you must show they intended to injure you. This can be difficult to do, especially without the help of a skilled personal injury attorney.

Fraudulent Concealment Exception

Suppose your injury or illness stems from your employer fraudulently concealed information about a dangerous condition at work—or if they deliberately misrepresented the severity of an injury you sustained.

In that case, under California law, the employer is no longer protected by the “exclusive remedy” rule. You are permitted to sue your employer for damages in addition to workers' compensation. There are three necessary elements as follows:

  • employer concealed the existence of the injury;
  • employer concealed the connection between injury and employment;
  • the injury was aggravated following the employer's concealment.

To prove fraudulent concealment, you must present evidence that your employer knew about the dangerous conditions at work, that they intentionally hid this information from you, and that you suffered injury, illness, or loss. Toxic exposure to work-related chemicals is one of the most common examples of fraudulent concealment attorneys deal with.

Uninsured Employer Exception

The “exclusive remedy” rule for workers' compensation is entirely contingent on your employer carrying workers' compensation.

Uninsured Employer Exception
Employers are required to carry workers’ compensation.

This is defined under Labor Code 3706, which says, “If any employer fails to secure the payment of compensation, any injured employee or his dependents may bring an action at law against such employer for damages, as if this division did not apply.”

If your employer doesn't carry this coverage, they are violating California law and not protected from personal injury lawsuits in the event of injuries.

If your employer doesn't have workers' compensation insurance, you can sue them for medical expenses, lost wages, pain and suffering, emotional distress, and other applicable damages.

If your employer cannot pay your benefits out of pocket, you can also file a claim with the Uninsured Employers Benefits Trust Fund (UEBTF).

Dual Capacity Exception

Dual capacity applies when your injuries occur from a situation not directly related to your employment—in other words, during a non-work-related connection with your employer. This may happen in one of two ways:

  • If you were injured through regular interaction with your workplace, but you were not “at work.” For example, if you work in a restaurant and have a slip-and-fall injury while coming in to dine, the employer is subject to premises liability just as if you were a restaurant patron.
  • If your employer manufactures a product that injures you in a non-work environment. For example, if your employer sold a defective product to a third party and you were injured while using that product, your employer may be subject to product liability.

Power Press Exception

The State of California recognizes a uniquely specific exception to the “exclusive remedy” rule in the form of power presses.

Work with a power press machine your employer has modified to operate unsafely (e.g., removing a guard to make it run faster). You can bring a personal injury lawsuit against your employer if you are injured.

“Exclusive Remedy” Rule in California
You can potentially bring a personal injury lawsuit against your employer if you are injured.

A power press is any material-forming machine that uses a die to press, impact, punch, stamp, or extrude material and not simply cut material like a blade. A guard is any apparatus whose purpose is to keep the worker's hands outside the point of operation whenever the ram can descend.

Suppose the employer knows and ignores that the manufacturer of a power-press machine requires a guard. In that case, the employer is civilly responsible when it causes injury to an employee by its knowing removal or failure to install a manufacturer-required point of operation guard on the power press defined under Labor Code 4558.

To prove that your employer is liable for damages, you will need to provide evidence that the machine was either modified or not set up to run safely and that your injuries resulted directly from the operation of this machine.

While workers' compensation benefits can be beneficial, they are sometimes inadequate to compensate injured workers for all their losses. Thus, our Los Angeles personal injury attorneys recognize other possible sources of recovery.

Third-party actions against somebody other than the employer are common. Still, there are situations where an injured employee can avoid the workers' compensation exclusive remedy rule and maintain a civil personal injury action against their employer.

You can contact our law firm for a free case evaluation by phone or through the contact form. Injury Justice Law Firm is located in Los Angeles, CA.

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If you have been injured in an accident, our experienced Los Angeles personal injury attorneys will protect your legal rights and help you recover compensation for your injuries. We are available 24/7 for your risk free initial consultation in Beverly Hills, Encino, Glendale, Hermosa Beach, Lancaster, Long Beach, Los Angeles, Marina Del Rey, Redondo Beach, Torrance, Santa Monica, San Fernando Valley, Valencia and Ventura County areas.