Managing Employee Injuries and Disability and Occupational Safety

The employer is entitled to recover not just compensation payments furnished (i.e. disability, permanent disability, and medical treatment), but salary, wages and other benefits as well. Thus, a public agency has the right to recover against the responsible party for:

 Labor Code Section 4850 benefits or other salary or sick leave benefits;

 All workers’ compensation benefits furnished (if self-insured); and

 The current value of disability retirement benefits.

If PERS is the provider of benefits, then PERS will be subrogated to these rights. Under the County Employees Retirement Act of 1937, the county retirement association will be subrogated to these rights. The subrogation rights of the retirement plan are based on the current actuarial value of the retirement benefit. Government Code Sections 21450-21455 and 31820-31822. This can be a substantial sum of money. The retirement system’s subrogation rights take priority over the employee’s right to recovery. An employer may also be entitled to a credit against future workers’ compensation liability, to the extent of the employee’s net recovery in the third party action. Labor Code Sections 3858, 3861. Determination of the right to credit is made by the WCAB. The WCAB also has the right to hear and determine whether the employer’s claim of credit should be reduced because of the negligence of the employer. 49 B. W HO ARE T HIRD P ARTIES ? The exclusivity provision of the workers’ compensation act applies only to employers and others who may be treated like the employer. Generally the rights of employees or their survivors to pursue remedies against others whose conduct caused or contributed to the injury remains intact. A third party who caused or contributed to the injury is subject to suit by either the injured employee or the employer. Labor Code Section 3850. Third parties have been found to include physicians, product manufacturers, co-employees, safety inspectors, property owners, contractors, etc. Two third parties who deserve special mention are:

 Uninsured employer. An uninsured employer is subject to a suit for damages as if the employer were a third party.  Co-workers. Actions are prohibited against co-workers except in instances where the co-worker was guilty of an unprovoked attack, was intoxicated or was not acting within the scope of the job duties.

Example: Court allowed action against an employee following an accident in the employer’s parking lot. While the accident occurred while both employees were in the course of employment, one employee was not acting within the scope of her job.

Managing Employee Injuries, Disability and Occupational Safety ©2019 (s) Liebert Cassidy Whitmore 54