Ain't it Grand? Workers' Compensation Exclusivity and Employer Conduct in 2017

• Publication year: 2018
• Author: HEATHER FRANCO, ESQ.

Ain't It Grand? Workers' Compensation Exclusivity and Employer Conduct in 2017

HEATHER FRANCO, ESQ.

Riverside, California

When I landed my first job as a workers' compensation law practitioner and cracked open my hornbook, I started reading about the 100-year-old "Grand Bargain" that is the American workers' compensation system. With perhaps undue fascination, I read on about how

the employer assumes liability for industrial personal injury or death without regard to fault in exchange for limitations on the amount of that liability. The employee is afforded relatively swift and certain payment of benefits to cure or relieve the effects of industrial injury without having to prove fault but, in exchange, gives up the wider range of damages potentially available in tort.

Charles J. Vacanti, M.D., Inc. v. State Comp. Ins. Fund (2001) 65 Cal.Comp.Cases 1402. I don't know about you, but I thought this was a fairly tidy solution to a situation that carried with it the unpredictable risk of injustice on both sides.

To make this bargain work, the right to recover workers' compensation benefits is generally the exclusive remedy for an employee against an employer for a workplace injury. LC §§3600(a), 3602(a), Arriaga v. County of Alameda (1995) 9 Cal.4th 1055, 1058-1059. This is so even where "an employer's negligent or reckless failure to provide adequate premises security despite knowledge of danger to its employees" has caused the injury. Arendell v. Auto Parts Club, Inc. (1994) 29 Cal.App.4th 1261, 1263.

That, then, is the exclusive remedy. Unfortunately, the rest of the learning curve is all about exceptions, always with the same moving target: Under what circumstances may an injured employee opt out of the Grand Bargain and bring a civil claim for a work-related injury? Sure, the injured worker must establish fault in so doing, but the remedy is so much broader. The Labor Code lays out the five non-exhaustive but well-established exceptions to the exclusive remedy rule: (1) dual capacity, (2) fraudulent concealment, (3) employer assault or ratification, (4) power press exception, and (5) uninsured employer. There is no shortage of analyses out there regarding the nuances of these five exceptions.

But what about when an employer's behavior causes emotional injury to an employee?

In some exceptional circumstances the employer is not free from liability at law for his intentional acts even if the resulting injuries are compensable under Workers' Compensation.

Johns-Manville Products Corp. v. Superior Court (1980) 27 Cal.3d 465, 473. The exclusive remedy bar may not apply, then, when employers step out of their proper roles or when they engage in conduct having a questionable relationship to employment and conduct that does not stem from the reasonable risk encompassed within the workers' compensation bargain. Fermino v. Fedco, Inc. (1994) 7 Cal.4th 701, 714.

Later in this article is a look at three cases from 2017 that address such conduct of employers: Ly v. County of Fresno, M.F. v. Pacific Pearl Hotel Management LLC, and Light v. Department of Parks & Recreation.

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