ABTL Report - Fall 2026 Edition - Flipbook - Page 16
ABTL - Los Angeles
Fall 2026
Overview of the Workers’ Compensation System...continued from Page 15
who was also a coach, the 昀椀rm paid for all equipment, the 昀椀rm
sponsored an awards banquet that team members and other
employees were invited to, the league required at least four
women to play at all times, and the 昀椀rm received a substantial
bene昀椀t through of昀椀ce morale. (Ibid.)
job injury is caused by a third party tortfeasor, the exclusive
remedy provision does not apply to the employee’s right to
recover against that third party. An employee can bring a civil
action against the third party because no employer-employee
relationship exists between them and thus the tort duties
involved are not subject to the workers’ compensation bargain.
(Paci昀椀c Gas & Elec. Co. v. Morse (1970) 6 Cal.App.3d 707,
714.) For example, if a delivery truck driver is injured in a car
accident on his normal delivery route, his remedy against his
employer would be for workers’ compensation bene昀椀ts but he
can sue in tort the third party driver who may have caused the
accident.
Certain injuries are statutorily excluded from the Act.
Labor Code section 3602, subdivision (b), sets out
circumstances when the Act does not provide the exclusive
remedy and a civil tort action may be brought against the
employer. (Id., §3602, subd. (b)(1)–(3).) These include when,
(1) the employee’s injury is proximately caused by a willful
physical assault by the employer, (2) the employee’s injury is
aggravated by the employer’s fraudulent concealment of the
existence of an injury and its connection with the employment,
and (3) the employee’s injury is proximately caused by a
defective product manufactured by the employer and is sold
to an independent third person and the product is thereafter
provided for the employee’s use by the third person. (Ibid.)
The Act also denies its protections to employers who carry
no workers’ compensation insurance. If an employer is not
insured for workers’ compensation and fails to secure the
payment of bene昀椀ts, the Act’s exclusivity provision does not
protect it from a civil suit by an injured employee. (Huffman v.
City of Poway (2000) 84 Cal.App.4th 975, 985.)
Labor Code section 3600, subdivision (a)(4)–(9) lays out
other speci昀椀c circumstances when conditions to compensation
are not met and therefore an on-the-job injury is not
compensable under the Act. (Ibid.) These situations include,
when (1) the injury was caused by intoxication of the injured
employee, (2) the injury was intentionally self-in昀氀icted, (3)
the injury arose out of an altercation in which the injured
employee was the initial aggressor, (4) the injury was caused
by the commission of a felony by the injured employee, and
(5) the injury arose “out of a voluntary participation in an offduty recreational, social, or athletic activity not constituting
part of the employee’s work-related duties, except where these
activities are a reasonable expectancy of, or are expressly or
impliedly required by, the employment.” (Ibid.)
V. Important aspects of the Act include civil suits brought
outside the system and application of the Privette doctrine.
An employee may try to bring a civil tort action against an
individual or company with ties to the employer.
Generally, an employee who has sustained a workplace
injury cannot sue an employer or coworker in tort because
Labor Code section 3601 states that “where the ‘conditions
of compensation exist,’ the right to recover compensation is
‘the exclusive remedy’ for injury or death of an employee
against the employer or coemployee acting within the scope of
employment.” (Cole v. Fair Oaks Fire Protection Dist. (1987)
43 Cal.3d 148, 154.) “[A] coemployee’s conduct is within the
scope of his or her employment if it could be imputed to the
employer under the doctrine of respondeat superior.” (Hendy v.
Losse (1991) 54 Cal.3d 723, 740.)
When determining whether an off-duty recreational activity
was expected as part of employment, courts examine whether
the employee subjectively believed participation in the activity
was expected and whether that belief was reasonable. In Ezzy
v. Workers’ Comp. Appeals Bd. (1983) 146 Cal.App.3d 252,
the employee was a law student and part time law clerk.
(Id. at p. 263.) She joined her law 昀椀rm’s softball team and
was injured. (Ibid.) The court concluded the injury resulted
from the employee’s participation in an activity that was a
reasonable expectancy of her employment. The court noted
that the employee was urged to play by one of the partners
Given the relatively limited monetary remedies available in
the workers’ compensation system, however, injured employees
often pursue tort actions for workplace injuries. In the context
of a joint venture, for example, an employee might argue that
only one of the several venturers is the employer entitled to
the protection of workers’ compensation exclusivity. The
employee might then argue that all other venturers are liable in
tort, e.g., because they had a role in ensuring a safe workplace
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