Suing Over a Work Injury in California

Suing the employer: in California, when the conditions of workers' compensation are met (the worker was an employee, the employer was insured or self-insured, and the injury happened while working and was caused at least in part by the work), workers' comp is the exclusive remedy against the employer. California's official jury instructions list the exceptions under which an employee may sue: the employer's willful physical assault, the employer's fraudulent concealment of the injury that aggravates it, injury from a defective product the employer made and sold, and removal or failure to install a required guard on a power press. Co-employees can be sued only for a willful and unprovoked physical act of aggression or injury caused by their intoxication.

Suing someone else: the DWC Guidebook for Injured Workers lists a claim or lawsuit against someone other than the employer who caused the injury as another possible source of recovery besides workers' comp.

Employer without coverage: it is illegal for a California employer with employees to operate without workers' comp, and the employer can face fines, a shutdown order and criminal charges. An injured worker can file a claim with the employer, may file a lawsuit for benefits in civil court, and can open a case with the Workers' Compensation Appeals Board and apply to the state Uninsured Employers Benefits Trust Fund (UEBTF), which pays awards the uninsured employer fails to pay and then seeks repayment from the employer. To get UEBTF benefits the worker must correctly name the employer and formally serve it.