When Workers Compensation is not your Exclusive Remedy
Typically, when someone is injured on the job, the sole remedy for obtaining money for their injuries is through workers compensation. This allows an injured employee the ability to receive some compensation for their injuries incurred while on the job, but unfortunately falls short of the available amount of compensation the same person may be able to recover through a personal injury claim. The major difference being the loss in ability to pursue general damages; better known as pain and suffering. Typically, these damages are the ones that will provide for the majority of the compensation that is available to the injured party, after the medical bills and attorney’s fees are paid.
This limitation to a workers compensation claim is referred to as “The Exclusive Remedy Rule.” What it spells out in basic terms is, less money to the injured party. This begs the question, “are their exceptions to this rule?” The answer is, “yes.”
There are many exceptions to the Exclusive Remedy Rule. Each exception should be discussed with an attorney. For purposes of brevity, below is a list of the most relevant, and popular exceptions to the Exclusive Remedy Rule. Meaning, the below list would allow a person to pursue a personal injury claim, but is not exhaustive.
- Where the employee’s injury or death is caused in an assault by the employer. (Lab. Code, § 3602(b)(1).)
- Where an employee is injured due to the employer concealing the employees pre-existing injuries. (Lab. Code, § 3602(b)(2).)
- Where the employee’s injuries are caused by a product made by the employer, but obtained privately by the employee. (Lab. Code, § 3602(b)(3).)
- Where the employee is not in the course and scope of work for the employer. (Lab. Code, § 3602(c).)
- Where the employer either assaults, or allows the assault of the employee. (Lab. Code, § 3601.)
- If there is a failure to pay workers compensation, or workers compensation is not available. (Lab. Code, § 3606.)
- Where the employee is injured as part of a voluntary after hours event. (Lab. Code, § 3600(9).)
This is not an exhaustive list, nor does it discuss the nuances of each exception. For those purposes, an attorney should be consulted prior to pursuing a personal injury claim. The list does however assist in an understanding that an injured employee is not stuck with just a workers compensation claim. In some instances of work related injury, an employee can pursue a personal injury claim against the employer.