Can my employer fire me if I file a personal injury claim for negligence against my job? I already have a Worker’s Compensation lawyer.


Ordinarily, an employee’s rights against his or her employer for on-the-job injuries lie solely under the workers’ compensation law—i.e., when the “conditions of compensation” are present, the employer is immune from civil damages liability because workers’ compensation is the injured employee’s “exclusive remedy. Workers’ compensation is basically a “no fault” system of redress for work-related injuries—i.e., benefits are paid to injured employees without proof of employer liability. The statutory scheme is intended to provide a “quick, simple and readily accessible method of claiming and receiving compensation.” [Marsh & McLennan v. Super.Ct. (Silvestri)]. Although the “conditions of compensation” apply, the claim may nonetheless be remediable in an action at law if it falls within one of the few recognized exceptions to the workers’ comp “exclusive remedy” rule. Some of these are statutory exceptions explicitly preserving common law tort remedies; others involve claims that simply fall outside the workers’ compensation law. For instance, employers may be sued for damages if they failed to “secure the payment of compensation.

A particularly liberal approach to the “employment relationship” issue is taken in the workers’ compensation context, for purposes of determining whether an injured worker is an “employee” (rather than an “independent contractor”) entitled to workers’ comp benefits. Broadly, courts are supposed to consider not only who had the right to control the details of the work performed, but also the liberal remedial purposes of the workers’ comp law. Moreover, In a workers’ comp proceeding, the employee has the burden of proving the injury was sustained in the course of his or her employment. However, an employment-related injury is presumed to result from the employer’s negligence, thereby shifting the burden of proof to the employer to prove lack of negligence in order to avoid liability. Here again, as in a workers’ comp proceeding, the employer is stripped of comparative negligence, assumption of the risk, and c-employee negligence defenses. It would be best to seek personal assistance from a lawyer in order to guide you with your personal injury claim.

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