Authorities as the decision cited them, with how this panel applied each one.
Labor Code section 3861
Labor Code section 3861 allows employer credit for employee's third-party recovery except where employer negligence is found.
Applied to determine defendant's entitlement to credit for third-party recovery.
From the decision · page 7Section 3861 requires the Appeals Board to "allow, as a credit to the employer to be applied
against his liability for compensation, such amount of any recovery by the employee for his injury,
either by settlement or after judgment, as has not theretofore been applied to the payment of
expenses or attorneys' fees, pursuant to the provisions of Sections 3856, 3858, and 3860 of this
code, or has not been applied to reimburse the employer." (Lab. Code, § 3861.)
Associated Construction & Engineering Co. v. Workers' Comp. Appeals Bd. (Cole) (1978) 22 Cal.3d 829
Employer concurrent negligence bars right to credit for third-party recovery; Board must determine employer fault and total damages.
Applied to assess employer negligence and credit entitlement.
From the decision · page 7In Associated Construction & Engineering Co. v. Workers' Comp. Appeals Bd. (Cole)
(1978) 22 Cal.3d 829 [43 Cal.Comp.Cases 1333], the California Supreme Court observed "that
the concurrent negligence of the employer bars his right to a credit against his liability for
compensation for the amount of any recovery for his injury obtained by the employee by settlement
of his cause of action against third parties; and [] that where the employer's negligence has not
been adjudicated in such third party action, the applicant is entitled to have it adjudicated before
the Board." (Id. at p. 835.) Accordingly, "[w]hen the issue of an employer's concurrent negligence
arises in the context of his credit claim based on a third party settlement, the board must determine
the appropriate contribution of the employer since the employee's recovery does not represent a
judicial determination of tort damages. Specifically, the board must determine (1) the degree of
fault of the employer, and (2) the total damages to which the employee is entitled. The board must
then deny the employer credit until the ratio of his contribution to the employee's damages
corresponds to his proportional share of fault." (Id. at p. 843.)
Bonner v. Workers' Comp. Appeals Bd. (1990) 225 Cal.App.3d 1023
Employer liable for contributory negligence only if it knew or should have known of dangerous condition and failed to take reasonable steps.
Applied to determine employer negligence based on knowledge of hazard.
From the decision · page 20Where an employer is concurrently negligent in the harm to the applicant, the credit to the
employer from the third-party settlement is reduced in proportion to its percentage of comparative
negligence. (Associated Construction & Engineering Co. v. Workers' Comp. Appeals Bd. (1978)
22 Cal.3d 829, 842.) Negligence is, "... conduct which falls below the standard established by law
for the protection of others against unreasonable risk of harm." (Rest.2d, Torts § 282.) "The
essential elements of negligence include: a legal duty to exercise due care; a breach of that duty;
and the breach as the proximate or legal cause of the resulting injury." (Bonner v. Workers' Comp.
Appeals Bd. (1990) 225 Cal.App.3d 1023, 1033.)
Perez-Zepeda v. DMS Facility Servs. (2015)
Employer responsible for injuries caused by dangerous condition only if employer knows or reasonably should have known of it.
Applied to confirm employer knowledge requirement for negligence.