Against your own employer, usually not. Workers compensation is the exclusive remedy, which is the trade the system makes, benefits without having to prove anybody was at fault, in exchange for giving up the right to sue.
Against somebody else whose carelessness caused the injury, yes. That second claim runs alongside the compensation case, and it covers losses compensation does not pay for at all.
This article is by Accident Lawyer of California, P.C., the personal injury practice of Aryan Aliakbarzadeh, Esq. in Northridge, California, admitted to the State Bar of California in October 2012. It describes how these cases work in California; it is not advice about yours.
Why you generally cannot sue your own employer Link to this section
Labor Code section 3602 subdivision (a) says that where the conditions of compensation are met, the right to compensation is the sole and exclusive remedy against the employer. The same subdivision closes the door on the argument that the employer wore a second hat, which lawyers call dual capacity.
The conditions of compensation themselves are in section 3600. In practice they come to the injury arising out of and in the course of the employment.
So the ordinary workplace injury, a fall from a ladder, a back injury lifting, a machine that caught a hand, goes through the compensation system. That is not a loophole or a failure. It is the bargain, and it is why benefits arrive without anybody having to establish blame.
The narrow exceptions Link to this section
Section 3602 subdivision (b) lists three situations where you may sue the employer anyway.
Where the employer’s willful physical assault proximately caused the injury or death.
Where the employer fraudulently concealed the injury and its connection with the employment, and the concealment aggravated the injury. Recovery there is limited to the damages flowing from the aggravation, and the employer carries the burden of apportioning them.
Where the injury was caused by a defective product the employer manufactured and sold to an independent third party, which then came back into the employee’s hands.
Subdivision (a) also carves out sections 3706 and 4558, which cover an employer that failed to secure compensation insurance and the removal of a guard from a power press.
These are genuinely narrow. Most people reading this will not fall into them, and that is why the second claim, the one against somebody who is not the employer, matters so much more.
The claim workers compensation does not replace Link to this section
Labor Code section 3852 is the provision worth knowing. It preserves the injured worker’s right to sue a third party who caused the injury for full damages, and it is not reduced or canceled by having claimed compensation.
A third party is anybody who is not your employer. The driver who hit the company van. The contractor on the same site whose crew left the hazard. The manufacturer of the equipment. The owner of the premises your employer sent you to.
That claim is an ordinary injury claim and it is governed by ordinary injury law, which means fault matters and gets apportioned rather than decided outright. A share of responsibility reduces what you recover without ending the claim.
What only the second claim pays for Link to this section
This is the practical reason to care. Workers compensation pays medical treatment and a portion of lost wages, calculated by formula. It does not compensate you for the experience of being injured.
The third party claim does. The non economic element, what the injury has done to your life rather than to your income, exists only on that side. So does the ability to recover your full wage loss rather than the compensation rate, and the full cost of future care rather than what the system authorizes.
If the injury is permanent, the difference between the two sides is not marginal. It is most of what the loss actually is, and what an injury claim is worth turns largely on those elements.
Your employer gets repaid out of what you recover Link to this section
The system does not let you be paid twice for the same loss, and the mechanics of that catch people out at the end of a case rather than the beginning.
Section 3852 lets the employer, which under section 3850 includes its insurer, recover the compensation benefits it paid. It can do that by suing the third party itself, by intervening in your case, or by asserting a lien against your recovery. Section 3853 requires each side to notify the other of a third party action, allows either to intervene, and requires separate suits to be consolidated.
Section 3856 sets the order in which a judgment is divided. Attorney fees and litigation costs come off first, the employer’s reimbursement is paid next, and the worker receives what remains. Sections 3859 and 3860 apply equivalent rules to settlements.
Section 3861 is the one people do not see coming. Where the compensation case is still open, the employer can take a credit against future benefits up to the amount of the worker’s net recovery. Settling the civil case without accounting for that can quietly reduce the benefits you were relying on.
None of this makes the second claim not worth bringing. It makes the order and timing of the two cases a decision rather than an accident.
The commonest version of this is a crash on the clock Link to this section
If you were driving for work and another driver caused the collision, you have both. A compensation claim, because you were working, and an ordinary claim against the driver who hit you, because they are a third party.
That is true whether you were in a company vehicle or your own, making deliveries, driving between sites or on the way to a client. It is also true if you were a passenger in a work vehicle somebody else was driving.
The early steps are the same as in any collision. The reporting, the medical record and the evidence, all of it as set out in what to do after a car accident in California, with one addition. Report it to your employer as a work injury as well, because the two claims open separately and neither opens the other.
Two systems, two sets of deadlines Link to this section
The civil claim against the third party is generally subject to a two year deadline from the date of injury, under Code of Civil Procedure section 335.1. If a public entity is involved, a written claim is usually due within six months under Government Code section 911.2.
The compensation claim has its own separate deadlines and its own procedure, and they do not line up with the civil ones. Missing one does not forfeit the other, and meeting one does nothing to protect the other.
This firm handles the third party injury claim. The compensation claim itself is work for a workers compensation attorney, and the two commonly run in parallel with each side’s lawyer dealing with the other. If you only have one of them, you are probably leaving the other on the table.
If you were hurt at work in Los Angeles or the San Fernando Valley and somebody other than your employer caused it, Aryan Aliakbarzadeh, Esq. will tell you whether there is a third party claim and how it sits alongside the compensation case. He handles collision claims across the Valley. Call or text 818-718-2522, 24 hours a day, seven days a week, or use the contact page.