Woodland Hills personal injury attorney Barry P. Goldberg is called about every imaginable type of injury. Sometimes, clients are seriously injured at work and Workers Compensation is the “Exclusion Remedy,” with very few exceptions. Most notably, my office will take on such cases if the worker is injured by the negligence of a “Third-Party” unrelated to the employer. However, on occasion, an employer fails to have Workers Compensation insurance. In that circumstance, there are several possibilities for suing an employer.
First, a Workers Comp claim is still permitted! An injured employee may file a claim for benefits with the “Uninsured Employers Fund”. However, pursuant to Labor Code § 3706, employers may be sued for damages if they failed to “secure the payment of compensation”—i.e., if the employer does not have workers’ comp coverage.
In such an action, the employee only has the burden of proving the injury was sustained in the course of his or her employment. Also, an employment-related injury is presumed to result from the employer’s negligence, thereby shifting the burden of proof to the employer to prove lack of negligence in order to avoid liability. Another benefit is that the employer is stripped of comparative negligence, assumption of the risk, and co-employee negligence defenses. (Labor Code § 3708; See, also, Chakmakjian v. Lowe (1949) 33 C.2d 308.)
Of course, these are great lawsuits to pursue if any argument can be advanced for employer negligence. In fact, a plaintiff is also entitled to collect reasonable attorney fees fixed by the court. (Labor Code § 3709). Also, a 10% penalty is imposed upon employers who willfully fail to obtain workers’ comp insurance. (Labor Code § 4554) The penalty is measured against a compensation award, and thus applies only if the employee elects to pursue a workers’ comp remedy. See, Leung v. Chinese Six Cos. (1992) 2 Cal.App.4th 801)
If you are injured at work, it is advisable to seek counsel from an experienced personal injury attorney and workers’ comp attorney to determine whether you are entitled to more than just comp benefits.