Workers’ Comp Attorneys’ Blog

5 Exceptions to the Workers’ Comp Exclusive Remedy Rule (Part 1)

In most cases, if you become injured at work, your claim will fall exclusively within California’s workers’ compensation system. There are a few circumstances, however, that would allow for an injured employee to also bring a civil claim against his or her employer.

The purpose of the workers’ compensation system is to provide medical care and disability benefits to an employee who is injured on the job. It is basically a no-fault system. In other words, in order to receive compensation under the workers’ compensation system, an employee does not have to prove that his employer was at fault – the mere fact that an injury occurred during working hours is generally sufficient to pursue a claim. On the other hand, if the employee were to file a civil lawsuit, the employee must provide evidence that the employer was at fault.

Under the workers’ compensation system, an employee is compensated for medical expenses and for a portion of his or her earnings. A civil claim, however, may include a number of other remedies, which taken together could be significant. Some of these include not only the medical expenses and disability earnings that workers’ compensation covers, but in addition could include a claim for past and future loss of earnings and earning capacity, damages for pain, suffering, loss of enjoyment, and other general damages.

#1. Dual Capacity Exception to Workers Comp Exclusive Remedy

When an injury occurs “on the job,” under most circumstances, the employee’s only recourse is to file a claim through the workers’ compensation system. However, the employer also has a duty to provide a safe environment for the general public, and that same duty would extend to an employee whether he or she is “on the job.” For instance, if a restaurant employee slipped and fell while dining (not during the ordinary course of his or her employment), the employee could sue the owners of the restaurant for failure to provide a safe environment.

#2. Fraudulent Concealment Exception to Workers Comp Exclusive Remedy

Fraudulent concealment means the employer is aware of something that could potentially harm an employee; the employer does not disclose the existence of the potential harm, and the employee becomes injured, or an illness or injury is aggravated as a result.

The three elements that are needed to prove fraudulent concealment claim are:

(1.) the employer concealed the existence of the unsafe condition;

(2.) the employer concealed the connection between the potential harm and employment; and

(3.) the injury to the employee was aggravated following the employer’s concealment.

Fraudulent concealment claims frequently arise in situations involving exposure to asbestos, mold, or toxic chemicals. Key elements of a claim are that the employer has actual knowledge and that the employee is unaware of the potential for harm and its relationship to his or her employment. These claims are limited to damages caused by the aggravation of the injury that results from the employer’s failure to disclose.

CLICK HERE to Continue Reading Part 2 of Exceptions to the Workers’ Comp Exclusive Remedy Rule

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