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Worker’s Compensation Exclusions in California
In California, worker’s compensation is generally the exclusive remedy for employees who are injured on the job, meaning they usually cannot sue their employers in a civil trial for workplace injuries.
However, there are exceptions to the rule, which allow for injured workers to take their case to court.
Common Job Site Serious Injuries
The most common serious job site injuries and causes of death include:
- Fall From Height
- Spinal Cord Injury
- Struck By Object
- Electrocution, Electrical Shock
- Caught In Between
- Trench Collapse
- Fire and Explosions
- Heat Stress
- Exposure to Harmful Chemicals
- Eye Injuries
- Cuts and Lacerations
- Loss of Limb
- Traumatic Brain Injury (TBI)
- Slips, Trips, and Falls
When a worker suffers an injury on a job site, typically the resolution for their injury, pain and suffering is a worker’s compensation claim. Worker’s compensation claims allow for an employee to proceed with a no-fault basis, meaning they do not need to prove negligence only their injury, but are limited in recovery to medical expenses, disability payments, and rehabilitation. Worker’s compensation generally does not allow for pain and suffering damages, emotional distress, punitive damages, and may limit collection of some damages for future full medical expense calculations.
Exceptions to Worker’s Compensation
The exceptions to worker’s compensation, that allows for a worker to pursue a claim in civil court:
- Assault: If an employee is intentionally injured by an act of assault by an employer or co-worker
- Defective Product: If the employer is also the manufacturer of a defective product, or a product is sold or leased to a third party to be given to the employee. This is called the dual capacity doctrine, in that employer has legal liability through another means such as product liability.
- Serious and Willful Misconduct: Engaging in serious and willful misconduct can allow for an employee to work outside the worker’s compensation system and sue their employer in civil court.
- Concealment: If an employer conceals the risk or conceals an injury, fraudulent concealment can be claimed and an employee can avoid worker’s compensation and seek a civil trial for damages.
- Outside Scope of Employment: If you are injured while engaging in work that is not part of the scope of your employment, worker’s compensation may not apply.
- No insurance – If your employer does not have worker’s compensation insurance, than the injury is not contained to the worker’s compensation system.
- Who is the Employer When There is No Worker’s Compensation Insurance
Under California Labor Code, “if an employer fails to secure the payment of compensation, any injured employee or his dependents may bring an action at law against such employer for damages”. An employer cannot force a case to be resolved by worker’s compensation when they failed to secure worker’s compensation insurance for the injured employee.
Frequently, when an employer does not have worker’s compensation insurance, it is because the workers were independent contractors who were not covered by policy that covered employees. In this case, the independent contractors can proceed with a personal injury trial for damages including pain and suffering and full economic and future medical injury costs.
One important consideration when determining who is the employer, is an analysis of not just the direct employer but all companies or agents that may be considered an additional employer of the injured worker.
If an unlicensed contractor failed to have insurance, his workers can be considered the presumptive employees of any company that hired the unlicensed contractor.
This can be important as a small company or contractor running without worker’s compensation insurance likely also does not have the resources to pay the full cost of a workers serious injury.
In order to recover in full, the worker will need to identity other employers such as a larger contractor who hired the small uninsured contractor, or the property owner who may also be considered an employer.
Under the California Labor Code, unlicensed contractors are presumed to be employees of whomever hired the contactors. Under Labor Code 3706, 3707 and 3709 the company, entity or person who hired the uninsured contractors has little legal defense and can be held 100% liable even if they did not direct the scope of work that resulted in the injury.
Injured without Workers Compensation Insurance
If you suffered a serious injury and do not have access to worker’s compensation insurance, consider contacting a personal injury attorney who works with injured workers, to evaluate who may be liable for your injury and the resulting loss of economic earnings, pain and suffering, and medical expenses.
Schneider Wallace is known for our aggressive pursuit of injured patients’ rights through complex litigation and class action lawsuits. To learn more about recovering damages for injuries, schedule a consultation with our trial lawyers at our California, Texas or Puerto Rico office. We practice before state and federal courts in jurisdictions throughout the United States in individual claims, class actions and multidistrict litigation.
To schedule an appointment with our knowledgeable attorneys regarding your or a family members serious injury, please call us for a free consultation at 1-800-689-0024. Or you can email us at info@schneiderwallace.com.
Schneider Wallace Cottrell Konecky LLP
300 S. Grand Ave., Suite 2700
Los Angeles, California 90071
Tel: 415-421-7100
Toll Free: 800-689-0024
Fax: 415-421-7105
Email: info@schneiderwallace.com