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Workers’ Compensation

Ca. Workers' Comp. Quarterly 2015, Vol. 28, No. 3

Blaming the Employer Could Negatively Impact Your Client’s Recovery from a Third-Party Tortfeasor

ERIC RITIGSTEIN, ESQ. Oakland, California

An employee’s attorney should be cognizant of the employer’s role in causing or allowing the employee’s injuries. The attorney should be especially careful about blaming the employer while presenting a workers’ compensation claim.

That an employee is entitled to receive workers’ compensation benefits for an industrial injury does not restrict the employee’s right to sue a third party for civil damages for the same injury. California Workers’ Damages Practice, 2nd ed. (Cal CEB 2014) at §3.2, citing Labor Code §3852; De Cruz v. Reid (1968) 69 Cal.2d 217, 222. The employee’s right to sue a third party coexists with the right to claim workers’ compensation; an injured worker may pursue either or both remedies. Id., citing Lamoreux v. San Diego & Ariz. E. Ry. (1957) 48 Cal.2d 617. Since the amounts recoverable as damages often exceed the sums recoverable as benefits, it is usually by pursuing a damages lawsuit that the employee will receive the maximum combined recovery. The workers’ compensation and damages remedies interact, however; if an injured worker is entitled to recover workers’ compensation, the attorney should evaluate how any benefits recovery may reduce the damages recoverable in the third-party lawsuit. Id. at §3.3.

Consider the following facts, which were presented to the California Supreme Court in DaFonte v. Up-Right, Inc. (1992) 2 Cal.4th 593.

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