Associated Construction & Engineering Co. v. Workers' Compensation Appeals Board

I dissent.

I am unable to agree with the majority’s holding that the Workers’ *848 Compensation Appeals Board (hereinafter the Board) is required to apply the principles of comparative negligence, developed in Li v. Yellow Cab Co. (1975) 13 Cal.3d 804 [ 119 Cal.Rptr. 858 , 532 P.2d 1226 , 78 A.L.R.3d 393 ], when an employer claims a credit after an employee has made an independent settlement with a third party and then seeks before the Board disability compensation benefits from the employer. The majority interprets Labor Code section 3861 as a delegation of authority to the Board to make the necessary determinations to apply the rule established by the majority—that an employer shall be allowed a credit under the Labor Code against his liability for disability compensation in the amount of an employee’s recovery from a third party, but only to the extent the employer’s liability for worker’s compensation exceeds his share of responsibility for the employee’s full tort damages. This rule, according to the majority, requires the Board to determine first, whether the employer was negligent, and, if so, then to determine (1) the degree of fault of the employer, (2) the total damages…

We must determine whether the principles of comparative negligence prescribed in Li v. Yellow Cab Co. (1975) 13 Cal.3d 804 [ 119 Cal.Rptr. 858 , 532 P.2d 1226 , 78 A.L.R.3d 393 ], are to be applied to the adjudication of employers’ subrogation rights within the workers’ compensation system. In particular, we consider whether Witt v. Jackson (1961) 57 Cal.2d 57 [ 17 Cal.Rptr. 369 , 366 P.2d 641 ], and Roe v. Workmen's Comp. Appeals Bd. (1974) 12 Cal.3d 884 [ 117 Cal.Rptr. 683 , 528 P.2d 771 ]—which prevent a negligent employer from obtaining any credit toward future workers’ compensation liability when an injured employee recovers from a third party—should be modified to allow a partial credit to the employer.

We conclude that the principles of Li should indeed modify the Roe doctrine, but only to allow the concurrently negligent employer a credit against workers’ compensation obligations which exceed the proportionate liability he would incur for indemnification of the third party under a comparative system of allocating tort responsibility among multiple *833 wrongdoers. Only this result carries out the central objective of Witt to allocate responsibility equitably…