You Have A Workers Compensation Claim; But Do You Also Have An Independent Third Party Claim?

By William Waddell,

Third Party Claims for Injuries Suffered at Work:

Most employed Californians are aware that if they are injured on the job they are entitled to benefits in the form of salary and medical treatment as part of the state mandated workers compensation insurance coverage.

What some Californians don’t know, is that in addition to the workers’ comp claim, the injured worker also has an independent claim against any person or company that caused or contributed to the injury.  If you are injured on the job, make sure you consult with an attorney to understand your rights.

The worker may simultaneously proceed against a third party for civil damages and also against the employer for workers’ compensation benefits for the same injury.  Lab. Code § 3852; Finney v. Manpower, Inc. (1981) 123 Cal. App. 3d 1066, 1069.

For example, a sales rep driving to an appointment is stuck by a vehicle that ran a red light and is injured, would have a workers’ comp claim through his/her employer, but also an independent claim against the driver of the other car.

Another example is a worker at a construction site who is hit by a forklift operated by a person employed by a different company.  The injured worker would have an independent claim against the forklift driver, his/her employer and also a workers’ comp claim.


Independent Third Party Personal Injury Claim vs. Workers’ Comp Claim, which is more Valuable?

The number one difference between a personal injury claim and a workers’ compensation claim is the amount of money that can be recovered for the injuries.  In a personal injury claim or lawsuit, the injured worker is entitled to recover all damages, including lost earnings, lost earning capacity, past and future medical expenses, and non-economic damages such as compensation for loss of enjoyment of life, humiliation, disfigurement, scarring, pain and suffering, among other things.

Conversely, in a workers’ comp case, the injured worker receives the bare minimum, limited to compensate for salary, permanent impairment benefits, medical bills, and vocational rehabilitation. Pain and suffering and other non-economic damages ae not recoverable under workers’ comp.

Thus, a personal injury claim against a third party is normally more valuable than a workers’ comp case.


No Double Dipping:

If an employee is injured such that he or she cannot work, the employee is entitled to compensation for lost wages as part of the workers’ comp claim and as part of the personal injury claim.  However, the employee is not entitled to retain the payments from both the workers comp. and personal injury claim.  Under California law, the workers’ comp insurer is entitled to be reimbursed for its loss wages benefits payments made directly to the employee if the employee recovers lost wages in the personal injury case.  Lab. Code § 3852; C.J.L. Construction, Inc. v. Universal Plumbing (1993) 18 Cal. App. 4th 376.



Pursuant to the labor code, an employer (or its insurer) has the independent right to recover compensation paid to the employee by a third party, by whose fault the employee has sustained an industrial injury. Lab. Code § 3852.  ; National Auto. & Cas. Ins. Co. v. Ainge (1950) 34 Cal. 2d 806.  The idea behind the subrogation statutes is an avoidance of double recovery by the employee who elects to claim benefits under the compensation law and also seeks civil damages for his or her injuries from a negligent third party.


Comparative Fault:

When an employee’s injury is caused, in part, by the employer’s negligence, the employer’s right to reimbursement is proportionately reduced to reflect the percentage of fault attributed to the employer.  DaFonte v. Up-Right, Inc. (1992) 2 Cal. 4th 593.   In addition, any fault attributed to the co-workers of the injured employee is attributed to the employer under the doctrine of respondeat superior, but the fault of the employee is not. Rodgers v. W.C.A.B. (1984) 36 Cal. 3d 330. This is an important distinction because when the employer is not negligent, the employer’s claim for reimbursement may not be reduced merely because the injured employee was negligent and contributed to his or her own injuries. Kemmerer v. Challenge (1980) 105 Cal. App. 3d 334.

In the instance when the employer is required to pay compensation benefits to the injured employee, the employer must reduce its right of reimbursement to reflect the employer’s negligence.  When the negligence of a third party aggravates a previous industrial injury, the employer is not entitled to reimbursement of the total amount of compensation benefits paid on account of the original injury, but is entitled to reimbursement for the amount of benefits paid as a result of the aggravation, which they would not have had to pay absent the subsequent event. Rhode v. National Medical Hospital (1979) 93 Cal. App. 3d 528

The foregoing synopsis of how workers’ compensation claims may be pursued simultaneously with personal injury claims is not intended to be a thorough or comprehensive evaluation of all issues presented.  This short article is intended to inform injured workers that they can purse two claims simultaneously.  Click here for for information on Employment Discrimination and Harassment. In addition this article is intended to demonstrate that pursuing simultaneous claims is complicated which requires that the injured worker consult with an attorney to learn whether they have an independent claim, the nature of that claim, and the importance of pursuing such a claim.

Click here to learn more about worker’s compensation.

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