Hurt at Work by Someone Else: Workers' Comp and More

The rule most people know

If you are hurt at work in California, workers’ compensation pays your medical treatment and part of your lost wages, regardless of who was at fault. In exchange, workers’ comp is generally the only remedy you have against your employer. You usually cannot sue your employer for the injury (Labor Code § 3602).

That is the part most people know. Here is the part they often miss.

The rule most people miss

Workers’ comp limits what you can do against your employer. It does not protect anyone else. California law preserves your right to sue a person other than your employer whose negligence caused the injury, even while you are receiving workers’ comp benefits (Labor Code § 3852).

That is called a third-party claim, and it can be worth far more than workers’ comp, because workers’ comp does not pay for pain and suffering, and it replaces only part of your wages.

When this comes up

• You were driving for work and another driver hit you. Delivery drivers, sales reps, home health workers, anyone on the road for the job. The other driver’s insurance is a third party.
• You were hurt on someone else’s property. A contractor injured at a customer’s home or business because of a dangerous condition the owner should have fixed.
• Defective equipment hurt you. A machine, tool or vehicle that failed because of how it was designed or made. The manufacturer can be a third party.
• Another company’s worker caused it. On a construction site with several contractors, an employee of a different company may be responsible.

How the two claims fit together

You can pursue both at the same time. Workers’ comp keeps paying your treatment and part of your wages while the injury claim moves forward.

There is a catch. When the injury claim pays, your employer or its workers’ comp insurer generally has the right to be repaid for what it spent, out of your recovery, and may also get a credit against future workers’ comp benefits. How much, and whether that claim can be reduced, depends on the facts, including whether the employer itself was partly at fault.

Coordinating the two claims is technical work. Done well, it can make a large difference in what you actually take home.

What to do

• Report the injury to your employer right away, and get workers’ comp started
• Write down who else was involved: the other driver, the property owner, the equipment, the other company
• Preserve the evidence: photos, the police report, the defective tool or part, witness names
• Do not sign a workers’ comp settlement without asking whether it affects a third-party claim
• Do not give a recorded statement to the other party’s insurer. Read why you should decline.

Talk to Boyd

If you were hurt on the job and someone other than your employer had a hand in it, call. The consultation is free, and Boyd takes the call himself: (714) 656-2400.