A. What is an “Exclusive Remedy”
Traditionally, when a worker is injured on the job by a co-employee, workers’ compensation is the “exclusive remedy.” How then does such a case become a civil lawsuit? A complaint properly pleading any of the exclusions to workers’ compensation exclusivity will keep the lawsuit alive until evidence, if any exists, reveals the exceptions do not apply.
California law holds that an employee’s injury is subject to the workers’ compensation system if the following “conditions of compensation” exist at the time of injury: 1) both the employer and employee are subject to the provisions of the Workers’ Compensation Act; 2) the employee is performing service related to and within the course of employment; 3) the injury is proximately caused by employment; and; 4) the employee’s injury is not self-inflicted, does not arise out of an altercation in which the injured employee is the initial physical
aggressor, or in the course of the employee’s commission of certain felonies or while intoxicated or engaged in voluntary off-duty recreational activities. Labor Code § 3600(a).
Exceptions to workers compensation exclusivity include physical assault by an employee. Additionally, the right to recover workers’ compensation is the exclusive remedy for injury or death of an employee against a co-employee acting within the scope of his or her employment, except for injuries caused by the co-employee’s willful unprovoked physical aggression or by intoxication. Labor Code § 3601(a). Proof of the co-employee’s intent to injure the applicant is needed to establish this “willful unprovoked physical aggression.” Torres v. Parkhouse Tire Service, Inc. (2001) 26 Cal.4th 995. A “willful” act does not include all common law batteries but only the types of batteries that are specifically intended to injure. Soares v. City of Oakland (1992) 9 Cal. App.4th 1822.
B. How do you attack a WC Claim
A plaintiff may try an end run around workers’ compensation exclusivity by claiming a co-employee injured the plaintiff intentionally and/or was intoxicated while on the job. Unfortunately, an early attack on the pleadings through a demurrer may not dispose of the case. This is true if intentional torts such as battery or intentional infliction of emotional distress are properly pled alleging the co-employee’s willful act or intoxication caused the plaintiff’s injuries.
While the case may not be disposed of at this early stage of litigation, an aggressive approach to discovery can combat an unfounded civil lawsuit cloaked in an exception to workers’ compensation exclusivity. The defendant can serve extensive written discovery, including requests for admissions, targeting the basis for specific allegations of willful act and/or intoxication. Declarations and testimony from the plaintiff and other co-workers may be essential in defeating the exclusion.
The best case scenario is obtaining testimony from the plaintiff denying the co-employee acted willfully or was intoxicated at the time of the accident. If plaintiff’s counsel will not dismiss the case outright, the ultimate disposal of a case of this kind is likely through a motion for summary judgment. While this is often a lengthy process, the defense may ultimately prevail without paying plaintiff any monies.
ABOUT THE AUTHOR: Jessica Gard graduated from California Western School of Law in 2008. Ms. Gard’s focus is on general liability and personal injury. Contact her at email@example.com.
Download Article Here: Defending Against a Workers Compensation Case in Civil Court