SINGLE REMEDY RULE UNDER CALIFORNIA WORKERS’ COMPENSATION LAW-AND THE EXCEPTIONS
Introduction:
The Workers’ Compensation system created in California provides for remedies to workers injured on the job. This legislation was fought for by labor and unions for decades before becoming the law applicable to all workers in California.
The limits on relief for Workers’ Compensation and the lack of a jury for deciding workers compensation claims have made some consider the relief available in the civil courts as preferable. The question arises as to when a worker can seek relief in the civil system even though injured on the job. That is the topic of this article.
The Basic Law and Its Exceptions:
California's laws normally provide that workers' compensation and fact finding under that system is the exclusive remedy against an employer for an employee's injury or death that occurs during the course and scope of employment. California Labor Code section 3600 itemizes the essential conditions that must exist for the exclusive remedy rule to apply. It is vital to note that there are often exceptions. Under certain circumstances, the exclusive remedy rule does not apply and an injured employee may assert a civil claim against his or her employer for a work-related injury.
A complaint filed under the civil courts can broaden the compensation available to clients. While the workers' compensation system provides medical care and disability benefits, its remedy is limited. The rationale behind limiting recovery is that in the Workers’ Compensation system, the claimant need not prove liability or fault on the part of the employer…it is a no-fault system. In civil court, at trial, it is required to prove negligence to achieve recovery, but once an injured worker establishes his or her employer's negligence by a preponderance of the evidence, the worker may recover items of damages not specifically provided for or compensated in the workers' compensation system.
Available damages in Superior Court can include past and future loss of earnings and earning capacity, medical expenses, and loss of household services. The worker may also recover damages for pain, suffering, loss of enjoyment, and other general damages, which can be substantial. Additionally, the injured worker's spouse may assert and recover on a claim for loss of consortium. None of these are available in the Workers Compensation claim process.
It should also be noted that attorneys’ fees in Workers’ Compensation are set by the system while they are a subject of negotiation in civil cases, usually contingency of about a third of the net recovery.
The Exceptions to the Exclusive Remedy Rule:
Exceptions to the exclusive remedy rule for actions against the injured worker's employer include:
(1) dual capacity;
(2) fraudulent concealment;
(3) employer assault or ratification;
(4) power press;
(5) uninsured employer.
Assuming one or more of these exceptions applies, the worker has a right to maintain a civil suit against the employer concurrently with a workers' compensation action. Note however, that if an injured employee receives workers' compensation benefits and also recovers civil damages under one or more of the exclusive remedy exceptions, the employer is entitled to a credit against the civil settlement or judgment for the compensation it has already paid to prevent an employee's double recovery. (Lab. Code, §§ 3600, subd. (b), 3709.5.)
Following a civil settlement or judgment, the employer is relieved of its obligation to pay any further compensation up to the amount of the net judgment or settlement.
- Dual Capacity
The dual capacity exception recognizes the fact that employers may have multiple duties towards their employees whether based on common law or statute. Workers' compensation is a worker's exclusive remedy only in those cases where the injury arises out of conditions of employment, as defined in Labor Code section 3600. Otherwise, the worker may pursue a civil claim against the employer based on a duty that the employer has which arises independently of the employment relationship.
The dual capacity exception applies in one of two scenarios. First, an employer that manufactures a product that injures its employee bears civil responsibility where the following conditions are present: (1) the employer manufactured a defective product; (2) the defective product was the proximate cause of the employee's injury or death; (3) the defective product was sold, leased, or otherwise transferred to an independent third person for valuable consideration; and (4) the product was thereafter provided to the employee for use by a third person. (Lab. Code, § 3602 subd. (b)(3).)
Second, the dual capacity exception applies where the employer serves a separate legal role or assumes an obligation that is not normally imposed by the employer-employee relationship. For example, in Miller v. King (1993) 19 Cal.App.4th 1732, the plaintiff was injured after she slipped and fell at a restaurant where she worked. The plaintiff sued the individuals who owned the restaurant property based on a premises liability theory. The owners brought a motion for summary judgment on the grounds that the exclusive remedy rule barred the plaintiff's claim because they were the shareholders of the corporation that employed plaintiff at the restaurant. The appellate court ruled that the employer was a corporation, and as a corporation, the employer was an entity that existed separately from the individuals whom plaintiff had sued.
In Weinstein v. St. Mary's Medical Center (1997) 58 Cal.App.4th 1223, the plaintiff had injured her foot in the course and scope of her employment. While the plaintiff was off work and receiving workers' compensation benefits, she went to the hospital where she was employed to receive medical treatment related to her work injury. As the plaintiff was on her way to have films taken, she slipped and fell on a liquid substance in the hospital hallway which resulted in an aggravation of her pre-existing work injury. The plaintiff filed a premises liability claim against the hospital for her injuries resulting from the slip and fall. The hospital filed a motion for summary judgment based on the workers' compensation exclusive remedy. The plaintiff argued that the exclusive remedy rule did not apply because the hospital was acting in its capacity as a medical provider instead of as an employer and that she was on the premises as a patient rather than as an employee. The trial court agreed with the hospital who contended that its duty to the plaintiff to maintain a safe premises was the same whether she was there as a patient or an employee. The appellate court reversed finding that the hospital failed to establish that the injury resulting from the slip and fall occurred as part of her employment which Labor Code section 3600 requires.
Both cases demonstrate the thinking of the courts that Workers’ Compensation remedies are exclusive only when the injury complained of related directly to the employee-employer relationship and the duties therein.
- Fraudulent Concealment
If an employer fraudulently conceals a worker's injury and its connection to employment and the concealment results in an aggravation of the injury, this exception applies. There are three vital elements: (1) the employer concealed the existence of the injury; (2) the employer concealed the connection between the injury and employment; and (3) the injury was aggravated following the employer's concealment. (Lab. Code, § 3602, subd. (b); Jensen v. Amgen (2003) 105 Cal.App.4th 1322, 1325.
The fraudulent concealment exception more typically arises in situations involving exposure to asbestos, mold, or a toxic chemical. It is a quite limited exception that requires actual knowledge by the employer and a lack of awareness by the worker of the injury and its relationship to employment.
Under this exception, the employer's liability is limited to those damages caused by the aggravation of the injury that results from the employer's concealment. The employer bears the burden of proof at to the proper allocation of damages that should be apportioned between the injury and any subsequent aggravation by the employer.
- Employer Assault or Ratification
An employer is not vicariously (automatically) liable for any injury or death caused by a physical assault by one of its employees against another employee. (Lab. Code, § 3601, subd. (a) Fretland v. County of Humboldt (1999) 69 Cal.App.4th 1478, 1489-1490.) Note an employee may bring a civil suit against his or her employer where the employer has acted affirmatively by either willfully assaulting the employee or ratifying the assault of the employee by a co-employee. (Lab. Code, § 3602, subd. (b)(1).) The rationale is that an intentional assault by an employer or its ratification is not an inherent risk or condition of employment and that the act of affirming the attack is also beyond the scope of what an employer should be doing.
It is critical to note that the employer ratification of the assault may be express or implied based on the employer's conduct, including conduct which is inconsistent with any reasonable intention other than intending to approve or adopt the assault. (Fretland v. County of Humboldt, supra, 69 Cal.App.4th at pp. 1490-91.) Thus, if your employer promotes a foreman who assaulted you the previous day after you complained of the action, you may claim ratification.
- Power Press Guard Removal or Failure to Install
Some employers modify the design of a power press machine by removing a guard or failing to install one at the point of operation. Such employer action is usually aimed at increasing productivity and efficiency, but it comes at the cost of worker safety. When a necessary guard is missing, the worker operating the machine risks serious damage to the hand or arm, including severe nerve damage and amputation.
A power press is any material-forming machine that uses a die to press, impact, punch, stamp, or extrude material and not simply to cut material in the manner of a blade. (Rosales v. Deputy Ace Medical Co. (2000) 22 Cal.4th 279, 286.) A guard is any apparatus whose purpose is to keep the workers hands outside the point of operation whenever the ram is capable of descending. (Bingham v. CTS Corp. (1991) 231 Cal.App.3d 56, 65.) Examples of a guard include, dual palm buttons to operate the machine, a light curtain, and any type of physical barrier that makes the point of operation inaccessible to a hand or other body part during operation.
When the employer knows and ignores the fact that the manufacturer of a power press machine required a guard, the employer is civilly responsible where 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. (Lab. Code, § 4558.)
Note that the employer must give an affirmative instruction or authorization to remove a required guard or to not install a required guard prior to the employee's injury. Thus, employer ratification after the employee's injury is insufficient to impose liability under this statutory exception.
Because a "knowing" removal or failure to install a required guard is a necessary element, the court cannot impute knowledge or impose constructive knowledge of a required guard on the employer. (Saldana v. Globe-Weis Systems Co. (1991) 233 Cal.App.3d 1505, 1516-17.) For example, the mere existence of a hole in the machine which signified that a safety device was missing does not satisfy the statute's requirement that the manufacturer had conveyed the knowledge to the employer that a guard was required. (Bryer v. Santa Cruz Pasta Factory (1995) 38 Cal.App.4th 1711, 1714-15.)
The key is to find evidence that the manufacturer of the machine designed, installed, required, or otherwise provided for the attachment of the guards and communicated this to the employer. It is therefore important to obtain the owner's manual, product instructions, product warnings, and warning labels in discovery and to demonstrate that the employer had access to them.
- Uninsured Employer
A common error for those new in business or those beginning businesses after immigrating to the United States is to ignore the Workers’ Compensation payments required. That error can be catastrophic, as described below.
An employee injured during the course and scope of employment may bring a civil claim against his or her employer who had failed to secure workers' compensation coverage as of the time of the injury. (Lab. Code, § 3706.) In California, an employer may satisfy the requirement of securing workers' compensation coverage by either purchasing a policy from an authorized insurer or by obtaining from the state a certificate of consent to self-insure. (Lab. Code, § 3700.)
In dual employment situations, the employer also has the option to enter an agreement with the co-employer in which the co-employer agrees to obtain and actually does obtain workers' compensation coverage for the shared employee. (Lab. Code, § 3602, subd. (d).)
Do not automatically assume that the exclusive remedy rule does not apply just because you’re the worker has received workers' compensation benefits from some source; the benefits must have been provided by the worker's employer. (See, Huffman v. City of Poway (2000) 84 Cal.App.4th 975.) "The price that must be paid by each employer for immunity from tort liability is the purchase of a workers' compensation policy." (Id. at p. 987.) It is important for the worker to include in the complaint allegations of employer negligence and the employer's failure to secure workers' compensation insurance under Labor Code section 3706 as authority to sue and avoid a demurrer.
California's workers' compensation laws provide favorable presumptions and benefits that the plaintiff may use against the uninsured employer, including: (1) a presumption of the employer's negligence (Lab. Code, § 3708); (2) the abolition of the defenses that the employee was contributorily negligent, assumed the risk, or was injured by a co-employee's negligence (Ibid.); (3) a presumption of negligence per se based on an OSHA citation issued to the employer (Lab. Code, § 6304.5); (4) the attachment of the employer's property upon or after the filing of the action to secure the payment of any judgment ultimately obtained (Lab. Code, § 3707); and (5) the allowance of reasonable attorney's fee fixed by the court as part of a judgment (Lab. Code, § 3709).
An employer has non-delegable duties under the Labor Code related to workplace safety and that these statutory duties are greater than the duty of care imposed under common law principles. (Levels v. Growers Ammonia Supply Co. (1975) 48 Cal.App.3d 443, 451-52; Labor Code, § 6400; Conner v. Utah Constr. and Mining Co. (1964) 231 Cal.App.2d 263, 271-72.) An employer's duty to maintain a safe workplace encompasses many responsibilities, including the duty to inspect the workplace to discover and correct dangerous conditions and to adequately train and warn of their existence. (Bonner v. Workers' Comp. Appeals Bd. (1990) 225 Cal.App.3d 1023.) An employer is also required to provide all necessary safety devices and safeguards for their employees. (Lab. Code, §§ 6401, 6402, 6403.)
Conclusion and Thoughts:
Workers’ Compensation is an excellent system for the average injury in the average situation. It does not property compensate for several areas of damage but the avoidance of proof of negligence and the cost and delay of civil trial is probably well worth it for the average injured worker. It is far from perfect, but usually better than the courts.
That said, if a case falls within one of the exceptions above, it would be wise to consider civil action for the additional damages available which can be substantial.