This article provides general legal information for educational purposes. It is not legal advice and does not create an attorney-client relationship. Consult a licensed attorney in your state for guidance specific to your situation.
A construction injury in California usually creates two distinct claims: workers' compensation against the employer and a personal injury lawsuit against any responsible third party. They serve different purposes.
Two separate systems
These claims run on different tracks. Workers' compensation is a no-fault insurance system handled by the Workers' Compensation Appeals Board. A third-party claim is an ordinary negligence lawsuit filed in superior court. Many injured workers pursue both at the same time.
What workers' compensation covers
Workers' compensation pays regardless of fault, but its benefits are limited:
- Medical treatment for the work injury
- A portion of lost wages through temporary disability
- Permanent disability payments based on a rating
- Vocational retraining in some cases
It does not pay for pain and suffering or full lost earnings.
The exclusive-remedy rule
In exchange for no-fault benefits, workers' compensation is generally the exclusive remedy against the employer. An injured worker usually cannot sue their own employer for negligence.
Where the conditions of compensation exist, the right to recover such compensation is the sole and exclusive remedy of the employee against the employer for the injury.
The third-party claim
The exclusive-remedy rule applies only to the employer. Where a different party, such as a general contractor, subcontractor, property owner, or equipment manufacturer, caused the injury, the worker may sue that third party for the full range of tort damages.
The claim of an employee for compensation does not affect the employee's right to bring an action for damages against any person other than the employer.
The workers' comp lien
When both claims exist, the workers' compensation insurer typically has a lien to be reimbursed from any third-party recovery for benefits it paid. Negotiating that lien is part of finalizing the case and affects the worker's net recovery.
Pursuing both at once
Workers' compensation provides immediate, no-fault benefits; a third-party claim is often the only path to full compensation, including pain and suffering.
Coordinating the two is one reason construction injury cases benefit from experienced counsel.
Frequently Asked Questions
Can I get workers' comp and sue at the same time?
Yes. Workers' compensation and a third-party lawsuit are separate and can proceed at the same time. Workers' compensation provides no-fault benefits from the employer, while the lawsuit seeks full damages from a responsible non-employer. The two are coordinated, including resolving any lien.
Why can't I sue my employer directly?
Because workers' compensation is generally the exclusive remedy against your employer under Labor Code section 3602. In exchange for benefits paid regardless of fault, the law bars most direct negligence suits against the employer. Narrow exceptions exist for certain employer misconduct, but they are rare.
What does a third-party claim add over workers' comp?
A third-party claim can recover damages workers' compensation does not, including pain and suffering and the full value of lost earnings. Workers' compensation is limited to scheduled medical and partial wage benefits, so the third-party claim is often the path to full compensation.
What is a workers' comp lien?
It is the workers' compensation insurer's right to be reimbursed from a third-party recovery for the benefits it already paid. The lien is resolved out of the settlement or judgment, and negotiating it down is part of maximizing the worker's net recovery.
Who counts as a third party on a construction site?
A third party is any responsible party other than your employer, such as a general contractor, another subcontractor, the property owner, an equipment manufacturer, or a premises controller. Identifying every potentially responsible third party is central to a full recovery.