In most situations, workers’ compensation is the only remedy for injured workers. Labor Code § 3600 provides that liability for workers’ compensation is “in lieu of any other liability whatsoever to any person except as otherwise specifically provided in Sections 3602, 3706, and 4588. …” If the criteria for compensability under the workers’ compensation law are not met as set forth in section 3600, liability in a particular case is determined by the common law. See, Lab. Code, § 3602(c).
According to Labor Code section 3602(a), an injured employee has , “the right to recover compensation is, except as specifically provided in this section and Sections 3706 and 4558, the sole and exclusive remedy of the employee or his or her dependents against the employer. The fact that either the employee or the employer also occupied another or dual capacity prior to, or at the time of, the employee’s industrial injury shall not permit the employee or his or her dependents to bring an action at law for damages against the employer.”
Labor Code sections 3600, 3602, 3706, and 4558, however, recognize five situations where an injured worker should be given other remedies to the extent that he or she may bring a tort action (i.e., in Superior Court rather than before the Workers Compensation Appeals Board) against an employer subject to the employer’s right to credit for workers’ compensation benefits furnished. The five actions are:
- Action against uninsured employer;
- Action for employer physical assault;
- Action for fraudulent concealment of injury and cause;
- Action based on limited product liability; and
- Action based on willful removal of or failure to install a power press point-of-operation safety guard.
. Other situations, besides these five specific examples, also may exist. For example, the so-called “whistleblower” statute of Government Code section 19683 provides an exception, and an employee may maintain a tort action based upon this provision to recover damages, including damages for physical injury, subject to a credit to the employer for workers’ compensation payments made See, Shoemaker v. Myers (1990) 52 Cal. 3d 1. Another whistleblower statute is Labor Code section 6310, which the employee may use to protect his or her rights. See, Taylor v. Lockheed Martin Corp. (2000) 78 Cal. App. 4th 472. Also, claims for sexual harassment or discrimination may be prosecuted through the EEOC or the Department of Fair Employment and Housing.
For more information about protecting your rights after being injured at work and workers’ compensation, contact The Krolikowski Law Firm.