{"id":10642,"date":"2020-07-15T12:11:09","date_gmt":"2020-07-15T20:11:09","guid":{"rendered":"https:\/\/www.aitkenlaw.com\/?p=10642"},"modified":"2020-07-15T12:11:09","modified_gmt":"2020-07-15T20:11:09","slug":"workers-compensation-your-exclusive-remedy","status":"publish","type":"post","link":"https:\/\/www.aitkenlaw.com\/newsite\/2020\/07\/15\/workers-compensation-your-exclusive-remedy\/","title":{"rendered":"Workers\u2019 Compensation: Your \u201cExclusive\u201d Remedy?"},"content":{"rendered":"

By Ryan Drakulich<\/a><\/p>\n

If you have been injured at your place of work or while performing work duties, you may be under the belief that filing a workers\u2019 compensation claim is your only route to recovery. Many injured workers believe that a workers\u2019 compensation claim is their only option due to the exclusive remedy rule. However, there are many ways that one can assert a separate and concurrent civil claim.<\/p>\n

The California Labor Code provides that workers\u2019 compensation is the exclusive remedy against an employer for an employee\u2019s injury or wrongful death<\/a> that arises while in the course and scope of employment. Section 3600 of the Labor Code identifies the conditions that must be met for the exclusive remedy rule to apply. However, the Labor Code also provides five exceptions to the exclusive remedy rule which, if applicable, allow the injured worker<\/a> to assert a civil claim against his\/her employer for an injury that arose while in the course and scope of employment.<\/p>\n

If any of the following exceptions apply to your matter, you have a right to assert a civil claim against your employer:<\/p>\n

(1) \u201cDual Capacity\u201d applies in two specific situations. The first situation occurs when the employer manufactured a defective product; the defective product was the proximate cause of the employee’s injury or death; the defective product was sold, leased, or otherwise transferred to an independent third person for valuable consideration; and the product was thereafter provided to the employee for use by a third person. Labor Code \u00a7 3602(b)(3).<\/p>\n

The second situation occurs when an employer serves a separate legal role or assumes an obligation that is not normally imposed by the employer-employee relationship. For instance, say you injured yourself while in the course and scope of your employment with a hospital. Upon arriving at the same hospital (while outside the course and scope of your employment) to receive treatment, you slip and fall on a wet floor in the emergency department and exacerbate your injury. Here, you have the right to file a civil claim against your employer (the hospital) for premises liability as your employer was not acting in its capacity as an employer but a medical provider.<\/p>\n

(2) \u201cFraudulent Concealment\u201d applies when an employer fraudulently conceals an employee\u2019s injury and its connection to employment whereby the concealment results in aggravation of the injury. Three elements must be proven when attempting to use this exception: (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. Labor Code \u00a7 3602 (b); Jensen v. Amgen (2003) 105 Cal.App.4th 1322, 1325. These instances usually occur when you have been exposed to toxic chemicals or chemicals known to cause cancer at your place of work.<\/p>\n

(3) \u201cIntentional Act by the Employer\u201d can be applied when an employer has acted affirmatively by either willfully assaulting the employee or ratifying the assault of the employee by a co-employee. Labor Code \u00a7 3602(b)(1).<\/p>\n

(4) \u201cPower Press\u201d is utilized in very specific situations. An employee that is injured while working with any \u201cmaterial-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\u201d may file a civil action against the employer if said employer failed to install or removed a guard for the power press machine. Rosales v. Depuy Ace Medical Co. (2000) 22 Cal.4th 279, 286.<\/p>\n

(5) \u201cUninsured Employer\u201d is the last exception to the \u201cexclusive remedy\u201d rule which allows an employee to file a civil action for injuries that occurred while in the course and scope of his\/her employment when the employer has failed to secure workers\u2019 compensation as of the time of the injury. Labor Code \u00a7 3706.<\/p>\n

It is important to note, if you are hired as an independent contractor, your workplace is not required to provide you with workers\u2019 compensation coverage. Therefore, you may go forward with a civil claim with the help of an Orange County personal injury lawyer<\/a> against your employer without worrying about a workers\u2019 compensation claim. Lastly, if you have filed a workers\u2019 compensation claim against your employer, you can still assert civil claims against third-party entities that were a substantial factor in causing your injuries.<\/p>\n","protected":false},"excerpt":{"rendered":"

By Ryan Drakulich If you have been injured at your place of work or while performing work duties, you may be under the belief that filing a workers\u2019 compensation claim is your only route to recovery. Many injured workers believe that a workers\u2019 compensation claim is their only option due to the exclusive remedy rule…. read more<\/a><\/p>\n","protected":false},"author":1,"featured_media":10658,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[8,12],"tags":[],"class_list":["post-10642","post","type-post","status-publish","format-standard","has-post-thumbnail","hentry","category-articles","category-blog"],"acf":[],"_links":{"self":[{"href":"https:\/\/www.aitkenlaw.com\/newsite\/wp-json\/wp\/v2\/posts\/10642","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/www.aitkenlaw.com\/newsite\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/www.aitkenlaw.com\/newsite\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/www.aitkenlaw.com\/newsite\/wp-json\/wp\/v2\/users\/1"}],"replies":[{"embeddable":true,"href":"https:\/\/www.aitkenlaw.com\/newsite\/wp-json\/wp\/v2\/comments?post=10642"}],"version-history":[{"count":0,"href":"https:\/\/www.aitkenlaw.com\/newsite\/wp-json\/wp\/v2\/posts\/10642\/revisions"}],"wp:featuredmedia":[{"embeddable":true,"href":"https:\/\/www.aitkenlaw.com\/newsite\/wp-json\/wp\/v2\/media\/10658"}],"wp:attachment":[{"href":"https:\/\/www.aitkenlaw.com\/newsite\/wp-json\/wp\/v2\/media?parent=10642"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/www.aitkenlaw.com\/newsite\/wp-json\/wp\/v2\/categories?post=10642"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/www.aitkenlaw.com\/newsite\/wp-json\/wp\/v2\/tags?post=10642"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}