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We are sometimes asked whether an injury that occurs on the job can be pursued as a personal injury claim rather than through the worker’s compensation system. The answer is, “it depends.”

In most cases, worker’s compensation is the exclusive remedy for job-related injuries. That means if you are injured on the job, you are only entitled to be paid compensation for that injury through the worker’s compensation system. There are, however, a few exceptions to that rule.

Worker’s Compensation vs. Personal Injury Claims

There are advantages and disadvantages to bringing claims in the worker’s compensation system. The greatest advantage is that injured employees are not required to prove fault in order to collect compensation. Even if the employer did nothing wrong, an employee is usually entitled to be compensated for an on-the-job injury.

In exchange for relieving employees of the need to prove fault, employees receive limited compensation for their injuries. In addition, employees have no right to a jury trial when they bring a worker’s compensation claim. Instead, an administrative law judge determines the amount of compensation according to a set of schedules and regulations that have been established by the State of California.

When an employee’s own negligence was a significant cause of the injury, the worker’s compensation system might allow the employee to collect more compensation than the employee would receive in a personal injury claim. On the other hand, if the employer is at fault, the injured employee will probably receive less from worker’s compensation than the employee would collect if the employee could pursue a personal injury claim.

Exceptions to the Exclusive Remedy of Worker’s Compensation

Some victims who are injured on the job have an opportunity to pursue personal injury claims. When worker’s compensation is not the exclusive remedy, injury victims have the opportunity to file a personal injury lawsuit in order to seek the more substantial compensation that is often available when juries make an award of civil damages.

Two circumstances are not really exceptions to the exclusive remedy of worker’s compensation. Rather, the worker’s compensation system simply doesn’t apply.

Independent contractor. Worker’s compensation remedies are only available to employees. An independent contractor is entitled to sue when a company’s negligence caused his or her injury, even if the company hired the contractor and the contractor was injured while performing the work for which he or she was hired.

Third party claims. The exclusive remedy of worker’s compensation does not apply to injury claims against a third party when the negligence of that party contributed to the injury. A “third party” is anyone other than the employer or an employee of the employer. The third party exception allows an employee who is engaged in work-related driving to bring a lawsuit against a third party driver whose careless driving caused the employee’s injury. It also allows an employee who was injured while operating a defective machine to sue the manufacturer for making an unsafe product.

When the injury victim is an employee who was injured because of an employer’s negligence, California recognizes five exceptions to the exclusive remedy provided by the state’s worker’s compensation law.

Dual capacity. An employee may be entitled to sue an employer for an injury that arises from negligent conduct that is unrelated to the employer’s role as employer. For example, assume that Sally works in the payroll department of a supermarket. On her day off, Sally shops for groceries at the supermarket. If Sally is injured in a fall on a wet floor in the supermarket, she can sue her employer because the employer’s capacity as a vendor of products is unrelated to its capacity as Sally’s employer.

Unemployed insurer. Employers are required to cover their employees under worker’s compensation insurance policies. Some employers try to save money by evading that law. If you were injured while working and your employer does not have worker’s compensation insurance (or permission to be self-insured), you are entitled to sue the employer for negligence. In fact, you will benefit from a presumption that the employer was negligent, from a provision of the law that prevents the employer from asserting your own negligence as a defense, and from an award of attorney’s fees in addition to other compensation if you prevail.

Power press. Employees who are injured while operating machinery that meets the legal definition of a power press can bring personal injury claims against their employers if the employer knowingly removes or fails to install a safety device that is designed to keep the worker’s hands from being caught in the press. Machines that use a die to stamp, punch, or form raw material are among those that meet the definition of a power press.

Assault. An employee can sue an employer if the employer deliberately assaults the employee, even if the assault occurs while the employee is on duty. While an employer is not usually liable for injuries caused by fights between employees, an employer might be liable for encouraging or directing one employee to assault another.

Fraudulent concealment. If the employer knows that you suffered from a work-related injury or disease and does not tell you that the injury was caused by your employment, you are entitled to sue the employer for fraudulently concealing the facts from you. That rule most often benefits employees who suffer from an occupational disease as the result of a toxic substance such as asbestos or diesel fuel.

If you were injured at work but think you might be entitled to sue the person or business responsible for your injuries, ask for advice from a personal injury lawyer.