Sacramento, CA (WorkersCompensation.com) - While in the course of his employment, plaintiff Marco Lopez was a passenger in a big rig truck driven by his co-worker. The truck was hit by another vehicle and Lopez was injured as a result.

After the accident Lopez, in propria persona, filed a form complaint for negligence against his employer who filed a demurrer to the complaint on the ground workers' compensation barred a civil action. Lopez did not oppose the demurrer, and the court sustained it on the basis of the exclusive workers' compensation remedy. (Lab. Code, § 3706.) The court took judicial notice of plaintiff's workers' compensation application in which he admitted the accident occurred during the course and scope of his employment. It granted Lopez "conditional leave to amend" if he could properly allege his employer had no workers' compensation insurance, thereby excepting the case from the workers' compensation statutory scheme.

Subsequently, an attorney filed an amended complaint on plaintiff's behalf, alleging the employer negligently hired the driver and, on information and belief, that the employer was self-insured and had "used that position to deny [p]laintiff medical coverage and needed medical treatment."

The employer again demurred, The court sustained the demurrer without leave to amend based on the exclusivity of workers' compensation statutes. The dismissal was sustained by the Court of Appeal in the unpublished case of Lopez v The Fishel Co. The court concluded that there "is no question the court properly sustained the demurrer without leave to amend. Plaintiff alleged he was defendant's employee and was injured while on the job."

The court took judicial notice of plaintiff's workers' compensation claim form and the compromise and release form showing the claim was settled. With few exceptions, the workers' compensation statutes provide an exclusive remedy for job-related injuries. Thus, absent an exception, a civil action may not be filed against an employer. In sustaining the demurrer to the original complaint, the court granted plaintiff leave to amend if he could plead such an exception, i.e., that defendant had no workers' compensation insurance. Plaintiff made no such allegation in the amended complaint.

Plaintiff asserts defendant is self-insured, complaining it refused to authorize over $700,000 for his necessary medical treatment. But the compromise and release order shows the claim was fully settled. Any unhappiness with the result cannot be litigated in this forum. Plaintiff's argument the settlement did not include this lawsuit has no merit. This action itself is improper and in any event could not be included in a settlement of the workers' compensation claim.

On the issue of sanctions, the Court noted "there was no valid basis for filing the complaint to begin with, much less the appeal. The workers' compensation body of law makes clear the statutory scheme is exclusive, absent a narrow set of exceptions." We are aware sanctions should be awarded only in the most egregious cases. But all of the circumstances convince us this is such a case. In addition to the wholly improper form of the brief, the contents are equally deficient. The brief is confusing and unclear. The case contains no unique issues or complicated facts, nor was there an argument that existing law should be extended, modified, or reversed, as might justify filing this appeal. We do not believe a reasonable person would have thought it proper to file it.

"Sanctions are awarded against plaintiff or against his lawyer or against both. We remand to the trial court to determine against whom the sanctions are to be awarded and the amount of sanctions." Lopez was represented by the Justice Law Center and Lee H. Durst when he filed the appeal.

In an unrelated case, Durst, a California lawyer for 30 years, was accused in a lawsuit of botching his client's legal claim against the mortgage company, which foreclosed on her San Juan Capistrano home. In 2001 a jury returned a verdict that said the Santa Ana lawyer was to pay $21 million to the woman who claimed that his faulty advice in business dealings left her destitute. State Bar records show no public record of discipline or of administrative actions against Durst. Read More...

Source:EmploymentLawAcademy.com

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