Truck driver survives employer's attempt to dismiss personal injury suit

Under California law, an employee must establish three essential elements in order to state a claim for personal injuries against his employer outside the workers' compensation system.

Case name: McMullan v. Permatex, Inc., et al., No. SACV 08-0673 DOC (RNBx) (C.D. Cal. 12/08/08).

Ruling: The U.S. District Court, Central District of California ruled that an employee's personal injury suit against his former employer was not barred by the Workers' Compensation Act. It denied the employer's request to dismiss the suit.

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What it means: Under California law, an employee may pursue a claim for personal injuries against his employer outside the workers' compensation system under the "fraudulent concealment" exception to the WCA. He must establish three essential elements in order to state such a claim: 1) the employer knew that the employee had suffered a work-related injury; 2) the employer concealed that knowledge from the employee; and 3) the injury was aggravated as a result of such concealment.

Summary: The claimant worked as a truck driver for the employer and its predecessors for more than 30 years, transporting, delivering and handling carpeting, carpet padding, and carpet installation products. He claimed that as a result of exposure to hazardous levels of toxins, he sustained injuries, including multiple myeloma. The employer contended that the claimant's suit was barred because California's WCA provided the exclusive remedy for his injuries. Siding with the claimant, the court denied the employer's bid to dismiss the suit.

The court found that the claimant satisfied the three elements of the fraudulent concealment exception to workers' compensation exclusivity. The court noted that the employer was aware of the claimant's exposure to toxic substances but failed to inform him that his illnesses were caused by such exposure. The employer also advised him that it was safe to work "in proximity to such deleterious substances" and failed to provide protective equipment. Finally, the claimant satisfied the third element by alleging that the employer's concealment caused further harm.

The court rejected the employer's contention that it could not have been aware of the claimant's injuries because he had no diagnosable symptoms and did not discover that he was ill until after he stopped working for the employer. "The fact that [the employee] was not aware of his injuries does not preclude the possibility that his employer was aware of his injuries," the court concluded.

March 2, 2009

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