Every month, a reader asks one of our sponsor legal experts about a work-related issue. These building trades law professionals respond in an Organized Labor exclusive. This month’s expert is Elinor Leary of The Veen Firm.

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I have both a workers’ compensation case and a civil case. The civil case is scheduled for mediation, but the comp case is not even close. Is this going to be a problem?

It is perfectly acceptable under California law to settle the civil case while the comp case continues on. If the timing is not ripe to discuss resolution of both your civil and comp cases, then your civil attorney may be able to negotiate a settlement with just the civil defendant. But there are some important issues for your civil attorney to consider if the civil case settles while the comp case is ongoing.

One of the issues is the workers' compensation lien. By the time you attend mediation, the workers' compensation insurance company-we'll call it the "carrier"-has probably paid you significant benefits for medical care and temporary disability. The California Labor Code gives the carrier the right to be paid back from a settlement in the civil suit. This means that if you are successful in settling your civil case in a couple months, the carrier will demand that you return whatever money it paid you in comp benefits since your injury. To assert this claim, the carrier will have filed a Notice of Lien with the Court. It may have also filed a Complaint-in-Intervention, where it became a party to your civil lawsuit.

One big issue to discuss will be whether the evidence has demonstrated any employer fault. In California, an employer (and its carrier) cannot recover comp benefits paid if the employer's negligence contributed to the employee's injury. If your employer was at fault, even partially, then the carrier is only entitled to reimbursement when the amount of benefits paid is greater than the employer's share of responsibility for your total recovery. Said another way, employer fault may bar or reduce the carrier's right to reimbursement of its lien.

Remember that some cases settle at mediation, and some do not. Either way, it is important that your civil attorney understand the interplay between the civil and comp systems so that you don't wind up without adequate remedy for your injuries. It is also crucial that your civil attorney be prepared to take your case to trial if mediation is unsuccessful.

-Elinor Leary, Attorney; The Veen Firm, PC

“Interaction via “Ask the Expert” does not establish an attorney-client relationship. Any advice given is neither legal advice nor does it serve as a replacement for hiring an attorney. In addition, any case results mentioned or discussed are not guarantees of similar results.”
Elinor Leary

This Month's Expert; Elinor Leary

Elinor Leary is the team leader of the Leary Trial Team at The Veen Firm. Her cases include worksite and workplace injuries, defective products, dangerous property conditions, negligent security, and vehicle collisions. Elinor has tried cases to verdict and has reached settlements listed among The Recorder’s “Top Settlements.” She is active in numerous organizations that champion consumer rights and that work to protect the Constitutional right to trial by jury.

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