SUBROGATION - Credit for third-party recovery–Labor Code §3858–After payment of litigation expenses and attorney fees fixed by the court pursuant to Labor Code §3856 and payment of the employer's lien, the employer shall be relieved from the obligation to pay further compensation up to the entire amount of the balance of the judgment. [Writ Denied]

SUBROGATION - Credit for third-party recovery–In the third-party action, the burden remains with the carrier to prove: (1) that the defendant was negligent; (2) that the defendant's negligence was the proximate cause of the plaintiff-employee's injuries; and (3) the amount of defendant's tort liability for such injuries. If the trier of fact finds that the defendant's tort liability equals or exceeds the amount of the settlement, then the carrier is entitled to full reimbursement. (See Breese v. Price (1981) 29 Cal.3d 923.) Ramon Gaeta v. Workers' Compensation Appeals Board, Steve P. Rados, Inc. 9 WCAB Rptr. 10,335 [Writ Denied]

SUBROGATION-Labor Code §3861–Effect of Medical Injury Compensation Reform Act–In cases in which a medical malpractice action is settled prior to trial, whenever an injured party has demonstrated that the recovery was reduced to reflect collateral source contributions, Medical Injury Compensation Recovery Act bars the workers' compensation carrier from asserting a credit in the workers' compensation case. (See Graham v. Workers' Comp. Appeals Bd. (1980) 210 Cal.App.3d 499.) Kaiser Foundation Hospitals v. Workers' Compensation Appeals Board (Mayleah Needels) 8 WCAB Rptr. 10,164 [writ denied]

SUBROGATION– Labor Code §3852–Insurance carrier's standing to sue third party–In this case, the insurance carrier paid death benefits to the former wife of an employee killed on the job. Because the carrier could have sued to recoup benefits paid to the worker while alive, and Labor Code §3851 provides that a recoupment action survives the death of the worker, the insurance carrier has standing to sue third-party tortfeasors for the death benefits it paid, despite the fact that the former spouse did not have standing to sue for wrongful death. Fremont Compensation Insurance Company v. Sierra Pine Ltd. 6 WCAB Rptr. 10,243

SUBROGATION– Labor Code §3856–A third-party tortfeasor who has purchased an assignment of an employer's lien for workers' compensation benefits has two distinct relationships with the employee-plaintiff: (1) as an opposing party in litigation, and (2) as a lien holder with a right to reimbursement of the employer's workers' compensation costs, but only after entry of judgment. (See Manthey v. San Luis Rey Downs Enterprises, Inc. (1993) 16 Cal.App.4th 782.) William B. Rivers v. Zoe Scolari 6 WCAB Rptr. 10,245

SUBROGATION– Labor Code §3856– When both the injured worker and the employer or workers' compensation carrier employ attorneys to prosecute civil litigation against a third party, there is no passive beneficiary and it is improper to award common fund attorney's fees to the plaintiff injured worker under Labor Code §3856. (See Kavanaugh v. City of Sunnyvale (1991) 233 Cal.App.3d 903.) Mark D. Pineda v. Mary Ann Skidmore, State Compensation Insurance Fund. 6 WCAB Rptr. 10,181

SUBROGATION– When an employer has paid workers' compensation benefits, reimbursement may be pursued in three ways: (1) the employer may bring an action directly against the third party; (2) the employer may join as a party plaintiff or intervene in an action brought by the employee; or (3) allow the employer to prosecute the action himself and subsequently apply for a first lien against the amount of the employee's judgment, less an allowance for litigation expenses and attorneys' fees. Rod Langley v. AM-PM Door, Inc., Federal Express Corporation. 6 WCAB Rptr. 10,103

SUBROGATION– Labor Code §3860 allocates the payment of attorney fees and litigation expenses depending on whether the settlement was effected (1) solely through the efforts of the employee's attorney; (2) solely through the efforts of the employer's attorney; or (3) through a combined effort where the employee and employer are represented by the same attorney or different attorneys. Michael Quintana v. Gregg Whitaker Gibson. 5 WCAB Rptr. 10,331

SUBROGATION– When the employer or workers' compensation insurer assigns the lien to the defendant in exchange for payment rather than prosecuting the action, the plaintiff is entitled to recover attorney fees and litigation expenses from the liened portion of the settlement. (See Quinn v. State of California (1975) 15 Cal.3d 162.) Michael Quintana v. Gregg Whitaker Gibson. 5 WCAB Rptr. 10,331

SUBROGATION– When the settlement is insufficient to satisfy the employer's claim and compensate counsel, the attorney fees and costs take priority. (See Gapusan v. Jay (1998) 66 Cal.App.4th 1004.) Michael Quintana v. Gregg Whitaker Gibson. 5 WCAB Rptr. 10,331

SUBROGATION– Employer complaint intervening in action brought by employee against a third-party– Labor Code §3853– An employer may recover the amount of workers' compensation benefits it has paid, but in a given case, the amount of its judgment may not exceed the total amount of tort damages suffered by the employee. (See Demkowski v. Lee (1991) 233 Cal.App.3d 1251.) When the employee does not recover against the third-party, the employer is not entitled to reimbursement. Darlene Rollins v. RRF Domiciles, Inc. 5 WCAB Rptr. 10,031

SUBROGATION– Any employer held liable for workers' compensation benefits as a result of another employer's failure to secure the payment of compensation shall be entitled to reimbursement from the employers who were unlawfully uninsured during the last year of the employee's employment. Utica National Insurance Company v. Workers' Compensation Appeals Board (Joe Garcia) 5 WCAB Rptr. 10,016

EVIDENCE IN CIVIL ACTIONS– Admissibility of CAL/OSHA safety orders– Labor Code §6304.5 prohibits the introduction of evidence of the issuance of, or failure to issue, a citation by the Division of Industrial Safety, and of testimony by division employees as expert witnesses or on the application of CAL/OSHA standards. [In this case, the testimony regarding CAL/OSHA safety orders was not used to establish the standard of care in actions by workers against third parties. (See Brock v. State of California (1978) 81 Cal.App.3d 752.)] Timothy Mulvey v. Royal Truck Body. 4 WCAB Rptr. 10,340

SUBROGATION– Labor Code §3850– The Labor Code authorizes the employer or its insurance carrier to bring an action against a third party tortfeasor and to include in the action the general damages to the employee as well as the special damages to the employer for workers compensation and medical benefits. The workers' compensation carrier cannot recover undetermined benefits in such a subrogation action. National Union Fire Insurance Company v. TKA Express, Inc. 4 WCAB Rptr. 10,329

SUBROGATION CLAIM– Labor Code §3852– The Death on the High Seas Act. 46 United States Code section 761 preempts an employer's state law claim in a subrogation action to recover from a third party tortfeasor sums the employer was obligated to pay for an employees industrial injury. Frank Garofalo v. Princess Cruises, Inc. 3 WCAB Rptr. 10,020