Managing Employee Injuries and Disability and Occupational Safety

C. A CTIONS AGAINST N EGLIGENT T HIRD P ARTIES The third party is liable under the general civil laws applied by the courts and is dependent on fault. Recovery is not limited to lost wages but also encompasses pain and suffering. An action against a third party is not barred by a claim or receipt of benefits under the workers’ compensation law.

Examples of typical third party actions that may arise involving an injured employee are:



Automobile accidents,



Premises liability,

 Defective or dangerous products, and



Exposure to toxic materials.

D. F IREFIGHTER ’ S R ULE

The “firefighter’s rule” provides that a firefighter may not maintain a tort action against the person or persons responsible for starting a fire causing injury.

A statute which became effective in 1983 expanded the rights of safety employees to sue negligent third parties when negligence results in injury to the safety employee. The law permits a civil action for damages to be brought against one who is responsible for injury to a peace officer, firefighter or emergency medical worker through an independent act or through want of ordinary care or skill in the management of property, occurring after such person knows or should know of the presence of a peace officer, firefighter or emergency medical worker. Civil Code Section 1714.9. E. E XCLUSIVE R EMEDY AS TO E MPLOYER California Labor Code Section 3601 indicates that where the conditions for compensation exist, the right to recover such compensation shall be the exclusive remedy for the injury or death of an employee against the employer. This rule provides insulation for the employer against tort recoveries against the employer by the employee.

1. E XCEPTIONS

Where the employee’s injury or death is proximately caused by a willful physical assault by the employer. Labor Code Section 3602(b)(1);

 Where the employee’s injury is aggravated by the employer’s fraudulent concealment of the existence of the injury and its connection with the employment, in which case the employer’s liability shall be limited to the damages proximately caused by the aggravation. Labor Code Section 3602(b)(2); and

Managing Employee Injuries, Disability and Occupational Safety ©2019 (s) Liebert Cassidy Whitmore 55