Injured on the job in a vehicle Two claims. You can bring both.

If a crash hurt you while you were working, you have two claims and they run at the same time. Workers' compensation pays for your treatment and part of your lost wages without anyone proving fault, and it pays nothing for pain and suffering, while the claim against the driver who hit you covers what workers' compensation leaves out. You do not pick one; the cost of running both is that your employer's insurer is repaid out of the second one, after your costs and attorney's fee come off the top.

The construction site version of this question is in our guide to third party claims and workers' compensation, and litigating the compensation claim itself is a separate subject.

Two claims and two sets of benefits

The benefit lines come from the state, not from us. The Division of Workers' Compensation lists the five basic benefits as medical care, temporary disability, permanent disability, supplemental job displacement, and death benefits, and states that temporary disability pays two thirds of the gross wages you lose while you are recovering, subject to a maximum weekly amount set by law. The same division states on its page for injured workers that workers' compensation benefits do not include damages for pain and suffering or punitive damages. That single sentence is why the second claim exists.

Why you cannot sue your employer

Labor Code section 3600(a) makes compensation liability exist against an employer without regard to negligence, and it does so, in the statute's words, "in lieu of any other liability whatsoever to any person" except as sections 3602, 3706, and 4558 provide. That phrase closes the door on your employer and leaves every other door open.

Section 3852 says so directly: a claim for compensation does not affect the employee's claim or right of action for all damages proximately resulting from the injury against any person other than the employer. The same section lets an employer who pays compensation make its own claim against that person, and recover the total amount of compensation together with salary, wages, pension, or other payments made to you. Both halves matter: the first is your case, and the second is the reason your settlement has a second creditor in it.

Were you working when it happened?

Section 3600(a) attaches conditions. Two of them decide most vehicle claims: that you were performing service growing out of and incidental to the employment and acting within the course of the employment, and that the injury was proximately caused by the employment. A delivery route, a service call, a run between two job sites, a bank deposit your manager asked you to make, and a drive in a company vehicle you were required to use all sit inside those words.

The ordinary commute is where the argument happens, and carriers, meaning the compensation insurers, have a name for it: the going and coming rule. Driving from your house to one fixed workplace and back is usually treated as your own time, and the exceptions turn on facts, not on labels. Whether your employer paid for the travel time, required your vehicle for the work, or sent you somewhere other than your usual site can change the answer. Report the injury to your employer in writing anyway, and ask for the claim decision in writing. The answer is not yours to guess, and a denied compensation claim takes nothing away from the case against the driver.

Labor Code section 5405 sets the one year period for compensation proceedings, running from the date of injury, from the expiration of benefit payments, or from the last date benefits were furnished. The Division of Workers' Compensation warns separately that if your employer does not learn about the injury within 30 days, you could lose the right to benefits. Neither of those dates has anything to do with the two years you have to sue the driver, and an open compensation file does not pause that clock. Our post on every California injury deadline in one table sets them out together.

What your employer's insurer takes back

This is the part that is rarely explained until the check is being cut. Once the compensation carrier has paid for an MRI, a surgery, and four months of disability, it wants that money back from the driver who caused the crash, and the Labor Code gives it three ways to get it: its own lawsuit, joining yours, or a lien on your recovery.

Section 3853 requires whichever of you files first to serve the other with a copy of the complaint by personal service or certified mail, and to file proof of that service, and it lets the other join as a party plaintiff, meaning join the same lawsuit, or consolidate at any time before trial on the facts. That is why a comp carrier that has been quiet for a year appears in your case the week after it is filed.

The order of payment then depends on how the case ends. Section 3856 governs a judgment: reasonable litigation expenses and a reasonable attorney's fee come out first, and the employer's first lien attaches to the balance. Almost no case ends in a judgment. Section 3860 is the one that governs yours, because it governs settlements.

Two things are worth reading twice in that table. The first is subdivision (a): a settlement signed without notice to the compensation carrier is not binding, which is why nobody should sign a release in a work crash without telling the carrier. The second is the sequence in subdivision (c). The reimbursement is not calculated on the gross number. It comes after the expenses of getting the settlement and the attorney's fee, and the amounts are set by the court or the Workers' Compensation Appeals Board rather than by the carrier's own statement of benefits.

The lien is a negotiation, not an invoice. Benefits paid for a body part the crash did not touch do not belong in it, and a carrier that includes them should be asked to prove each line. There is also a second right, the credit against future benefits, that reaches treatment you have not had yet. It is explained in our guide to third party claims and workers' compensation, and it should be resolved in the same conversation as the lien, before anything is signed.

When your work crash is different

• You were commuting. No compensation claim in most cases, and the claim against the driver is the whole case. That is not a bad outcome, because it is the case with no lien on it.
• You caused the crash. Compensation still pays, because it does not ask who was at fault. There is no second claim to bring.
• A coworker was driving. A coworker acting in the course of employment is not a third party, so the crash stays inside the compensation system unless someone else contributed to it.
• The at-fault driver had no insurance. Your own uninsured motorist coverage becomes the source of payment. Our guide to uninsured and underinsured motorist claims explains how that coverage responds, and if your own vehicle was uninsured, read what Proposition 213 does to the claim before you value anything.
• You are a gig or contract driver. If nobody carried compensation coverage for you, there is no first claim, and the personal auto policy you were driving under may exclude the business use you were making of the car.
• A public agency vehicle or a road defect is involved. A written claim goes in within six months under Government Code section 911.2, on top of everything above. Our post on the six month Metro claim deadline covers how that is presented.
• Your employer's equipment failed. Bad brakes on a company truck are the employer's own negligence, and that conduct is the main argument for cutting what the carrier recovers from your settlement.

You almost certainly have both claims

Almost certainly both. If you were driving for work when another driver hit you, the compensation claim gets you treated and keeps some money coming in, and the claim against that driver is where the rest of the case lives: the wage loss compensation does not cover, the future care, and every dollar of pain and suffering. The two are not alternatives, and people who choose one usually did not know the second one existed.

Do three things this week. Report the injury to your employer in writing and keep a copy. Ask for the claim form and the carrier's decision in writing. Then tell whoever is handling the injury claim that a compensation carrier is paying, so the lien is negotiated during the case instead of discovered at the end. Our Los Angeles car accident lawyer page explains how the second claim is built, and the questions we get asked most cover what happens after the first call. No fee unless we recover.