Most people hurt at work in Kern County are told the same thing on the first day: workers compensation is what you get, and that is the end of it. That is right about your employer and wrong about almost everything else.
Workers compensation does not pay for pain and suffering, and it is only exclusive as to the employer. Labor Code 3852 says a compensation claim “does not affect their claim or right of action for all damages proximately resulting from the injury or death against any person other than the employer.” On most sites, in most warehouses, and on most oilfield and packing operations, the company whose negligence hurt you is not the company that signs your check. Where that is true there is a second claim, it runs alongside the comp claim rather than instead of it, and it is the one that pays for what comp does not.
Culver Legal has recovered $200 Million and counting for injured people in California. We work on contingency, we advance the costs of the case, and there is no fee unless we win. If there is no recovery, you are not charged those costs either. Call (310) 600-7881 at any hour, including tonight.
Can I Sue My Employer, or Only Claim Compensation?
Usually only compensation, and there are three written exceptions worth knowing because two of them come up more often than people expect.
Labor Code 3602(a) sets the rule: where the conditions of compensation are met, that is “the sole and exclusive remedy of the employee or his or her dependents against the employer”. The section then names its own exceptions, “except as specifically provided in this section and Sections 3706 and 4558”.
The uninsured employer, Labor Code 3706. This is the big one and it is stated in plain terms: “If any employer fails to secure the payment of compensation, any injured employee or his dependents may bring an action at law against such employer for damages, as if this division did not apply.” An employer who did not carry the insurance loses the protection the insurance buys. The case becomes an ordinary negligence claim, with ordinary damages, including pain and suffering.
The power press exception, Labor Code 4558. Where a point of operation guard that the manufacturer required and told the employer about was not installed, the employee may sue the employer directly. This is narrow and it is specific to power presses, and where it applies it is decisive.
Conduct the section itself carves out, including a physical assault by the employer and a fraudulent concealment of an injury that made it worse.
Everything else runs against somebody who is not your employer.
Who Else Might Be Liable?
This is where the money usually is, and the question is simply who else was on the site.
A general contractor or another trade. On a shared site, the party whose work created the hazard is a third party as to you, whoever employs them. That is most common on a construction site.
The property owner, where the premises themselves were unsafe rather than the work being done on them. A fall caused by the condition of the property is a premises claim as well as a work injury.
An equipment manufacturer, where a machine was defective or lacked a guard, or a maintenance contractor who serviced it.
A driver. Anyone injured on the road while working has a claim against the at-fault driver on top of comp, whether that was a car, a commercial vehicle, or a vehicle that struck them while they were on foot.
A public entity, where the work was on or beside public property. That shortens the deadline to six months, which is covered below.
What the Second Claim Adds
Compensation and a third-party claim pay for different things, and the gap between them is the reason this page exists.
| Loss | Workers compensation | Third-party claim |
|---|---|---|
| Medical treatment | Yes, through the comp system | Yes |
| Lost wages | Partial, at a statutory rate | In full |
| Lost future earning capacity | Limited | Yes |
| Pain and suffering | No | Yes |
| Loss of consortium for a spouse | No | Yes |
One thing to expect rather than be surprised by. Where a third-party claim recovers money, the comp insurer has a right to be repaid out of it for what it has already paid. That is normal, it is negotiable, and it does not mean the second claim was not worth bringing. It means the arithmetic has to be done properly rather than assumed.
Was the company that hurt you the company that pays you?
If not, there is a second claim, and it is the one that pays for pain and suffering.
What If My Employer Had No Insurance?
Then the position changes completely, and in your favor.
Labor Code 3706 removes the exclusive remedy for an employer who failed to secure the payment of compensation. You may sue them directly “as if this division did not apply”, which means an ordinary negligence action with ordinary damages rather than a comp claim with statutory limits.
You are not left with nothing if that employer cannot pay. California maintains the Uninsured Employers Benefits Trust Fund for exactly this situation. There are procedural steps to preserve access to it, and they have their own timing, which is the practical reason to ask early rather than later.
How to find out. Whether an employer carried coverage is a checkable fact rather than something you have to take their word for, and it is one of the first things worth establishing.
Injuries That Get Underplayed
Head injuries. A fall from height or a struck-by injury frequently produces a brain injury that the emergency record does not capture, because a clear scan answers the emergency question rather than every question.
Cumulative trauma. An injury that built up over months of the same movement is compensable, and it is the kind most often not reported at the time because there was no single moment to report.
Anything that gets worse after you go back. Returning to work does not close the question of what the injury cost, and an early return under pressure is common rather than evidence of recovery.
Where a workplace injury is fatal, the family’s claim is a wrongful death claim, and the rules on who may bring it are stricter than most families expect.
How Long Do I Have?
Two years from the date of injury for a third-party claim, under Code of Civil Procedure 335.1.
Six months to present a written claim to a public entity, under Government Code 911.2, where the work was on public property or a public body was otherwise involved.
The workers compensation claim runs on its own separate clock, and reporting the injury to your employer has its own much shorter timescale. The two systems do not talk to each other, and meeting one deadline does not protect the other.
Did your employer actually carry the insurance?
If not, Labor Code 3706 lets you sue them directly. It is a checkable fact, not something to take on trust.
Where Does a Bakersfield Work Injury Case Actually Go?
Two different places, which is the practical consequence of there being two claims.
The third-party injury case seeking more than $35,000 is an unlimited civil case, filed at the Metro Justice Building, 1215 Truxtun Avenue and heard in Kern County before a Kern County jury. The workers compensation claim does not go there at all; it runs through the state’s own administrative system on a separate track.
Where a public entity is a defendant, because the work was on a public project or public property, a written claim must be presented within six months rather than two years. For the City of Bakersfield that goes to the City Clerk, 1600 Truxtun Avenue, 1st floor, and is handled by Risk Management on the 5th floor of the same building. The city, the county, a school district and the state are separate entities, so confirm which one before filing anything.
On the medical side, the most serious injuries in the county go to Kern Medical, 1700 Mount Vernon Avenue, a Level II trauma center designated in 2001 and re-verified by the American College of Surgeons Committee on Trauma. Work injuries add a wrinkle here that other cases do not have: treatment is often directed through the employer’s medical provider network, and those records sit with a provider chosen by the insurer rather than by you. That does not make them unusable, but it is a reason to keep your own copies as you go.
Why Bakersfield Clients Choose Culver Legal
We come to you. If you are in the hospital, at home and unable to drive, or a long way out in the county, we will meet you where you are.
Our team speaks Spanish, Farsi, Filipino, Hindi, Mandarin and Korean. Explaining what happened to you in your own words is not a convenience, and on a work injury it is often the difference between a report that reflects the facts and one that does not.
The economics are simple. The firm works on contingency and advances the costs of the case, so there is nothing to pay up front and no fee unless we win. We advance the case costs, and if there is no recovery you are not charged those costs either. Culver Legal has recovered $200 Million and counting, and answers the phone 24 hours a day.
Bakersfield Work Injury FAQs
I already filed a workers compensation claim. Can I still bring a lawsuit?
Yes, if somebody other than your employer caused the injury. Labor Code 3852 says a compensation claim “does not affect their claim or right of action for all damages proximately resulting from the injury or death against any person other than the employer”. The two run alongside each other, and the second one covers pain and suffering, which compensation does not.
Can I sue my own employer?
Usually not, because Labor Code 3602 makes compensation the exclusive remedy against them. There are written exceptions. The most important is Labor Code 3706: an employer who failed to secure the payment of compensation can be sued directly, “as if this division did not apply”. Labor Code 4558 covers an unguarded power press.
What does the second claim pay that compensation does not?
Pain and suffering, full lost wages rather than a statutory fraction, lost future earning capacity, and a spouse’s loss of consortium. Where it recovers money, the comp insurer has a right to be repaid what it has already paid out, which is normal and negotiable.
Could I lose my job for making a claim?
Retaliating against someone for pursuing an injury claim is unlawful in California. If something like that has already happened, say so early, because it is a separate issue from the injury and it is handled differently.
I am undocumented. Can I bring a claim without putting myself at risk?
Yes, and the protection is stronger than most people expect. Under Evidence Code 351.2, added by AB 2159, evidence of a person’s immigration status is not admissible in a civil action for personal injury or wrongful death, and discovery into it is not permitted either. It cannot be raised at trial and it cannot be asked about beforehand.
Do I have to pay back workers compensation if I win the other case?
Usually some of it, yes, and anyone who tells you otherwise is setting you up for an unpleasant conversation later. Where compensation benefits have been paid for the same injury, the carrier has a right to be reimbursed out of a third-party recovery. That is not a reason to skip the third-party claim. The two systems pay for different things, the compensation side does not pay for pain and suffering at all, and what is repayable is frequently negotiable rather than fixed. The point is that the number you keep is the recovery minus the lien, so anyone estimating your outcome without mentioning the lien is estimating the wrong number.
How long do I have to sue for a work injury in California?
For the third-party injury claim, two years from the date of injury. Where a public entity is involved, a written claim within six months, which is the deadline most likely to be missed. The workers compensation claim runs on its own separate and much shorter clock, and reporting the injury to your employer has a shorter timescale again. Meeting one of these does nothing to protect the others, and the fact that the compensation claim is open does not mean the two-year clock has stopped.
Contact a Culver Legal Bakersfield Work Injury Lawyer
The question that decides whether you have a second claim is simply who else was on the site, and it is answerable in a phone call. If you were hurt at work anywhere in Bakersfield or Kern County, reach us at (310) 600-7881, at any hour. The review costs nothing and it does not affect your compensation claim.
Attorney Advertising. Prior results do not guarantee a similar outcome. Culver Legal, LLP is a California law firm. The information on this page is for general informational purposes and does not constitute legal advice.
