CACI No. 2802. Fraudulent Concealment of Injury - Essential Factual Elements (Lab. Code, § 3602(b)(2))

Judicial Council of California Civil Jury Instructions (2023 edition)

Download PDF
2802.Fraudulent Concealment of Injury - Essential Factual
Elements (Lab. Code, § 3602(b)(2))
[Name of plaintiff] claims that [he/she/nonbinary pronoun/[name of
decedent]] was harmed because [name of defendant] fraudulently
concealed the fact that [name of plaintiff/decedent] had been injured on
the job. To establish this claim, [name of plaintiff] must prove all of the
1. That [name of plaintiff/decedent] was injured on the job;
2. That [name of defendant] knew that [name of plaintiff/decedent] had
suffered a job-related injury;
3. That [name of defendant] concealed this knowledge from [name of
plaintiff/decedent]; and
4. That [name of plaintiff/decedent]’s injury was made worse as a
result of this concealment.
If [name of plaintiff] establishes this claim, [he/she/nonbinary pronoun]
must prove the total damages caused by the injury. [Name of defendant]
must prove the damages that [name of plaintiff/decedent] would have
sustained even if [name of defendant] had not concealed the injury. [Name
of plaintiff] is entitled to recover the difference between the two amounts.
New September 2003
Directions for Use
This instruction is intended for cases where the employer is the defendant and the
plaintiff alleges the case falls outside of the workers’ compensation exclusivity rule.
This instruction pertains to aggravation of an injury caused by concealment.
Sources and Authority
Exclusive Remedy: Fraudulent Concealment Exception. Labor Code Section
“[T]he 1982 amendments were not intended to provide an exhaustive list of
exceptions to the exclusivity rule. They did not, for example, foreclose the
recognition of an exception for injuries stemming from wrongful discharges that
violated public policy, an issue that neither the Legislature nor the judicial
system had confronted in 1982. Section 3602 only applies ‘[w]here the
conditions . . . set forth in section 3600 concur,’ and does not purport to resolve
the ambiguities in that latter section discussed above, nor to definitively delineate
the scope of the compensation bargain that has been the key to construing the
meaning of section 3600. Rather, section 3602 merely confirms the judicial
recognition of certain types of employer acts as outside the compensation
bargain, even as it reinforces the exclusivity rule by repealing the dual capacity
doctrine.” (Fermino v. Fedco, Inc. (1994) 7 Cal.4th 701, 720 [30 Cal.Rptr.2d 18,
872 P.2d 559], internal citation omitted.)
“In general, the Workers’ Compensation Act provides an employee with his or
her exclusive remedy for a work-related injury. Subject to narrow exceptions,
‘where the . . . conditions of compensation concur,’ an injured employee cannot
maintain a civil action against his or her employer or another employee.” (Lopez
v. C.G.M. Development, Inc. (2002) 101 Cal.App.4th 430 [124 Cal.Rptr.2d 227],
internal citation omitted.)
“[A]n employee seeking to state a cause of action against an employer under
section 3602(b)(2) must ‘in general terms’ plead facts that if found true by the
trier of fact, establish the existence of three essential elements: (1) the employer
knew that the plaintiff had suffered a work-related injury; (2) the employer
concealed that knowledge from the plaintiff; and (3) the injury was aggravated
as a result of such concealment.” (Palestini v. General Dynamics Corp. (2002)
99 Cal.App.4th 80, 89-90 [120 Cal.Rptr.2d 741], internal citation omitted.)
“While there are no cases defining the term ‘fraudulent concealment’ as used in
the section, its general meaning is not difficult to discern. According to both
statute and case law, the failure to disclose facts may constitute fraud if the party
with knowledge has a duty to make disclosure. We have no reason to believe
that the term ‘fraudulent concealment’ as used in subdivision (b)(2) was intended
to have a meaning other than this.” (Foster v. Xerox Corp. (1985) 40 Cal.3d 306,
309-310 [219 Cal.Rptr. 485, 707 P.2d 858], internal citations omitted.)
“An employers actual knowledge of the existence of an employee’s injury
connected with the employment is a necessary prerequisite to establishing a
claim against the employer for fraudulent concealment under section 3602(b)(2).
This principle is based on the rationale that an employer cannot be held liable
under section 3602(b)(2) for concealing something of which it had no
knowledge.” (Palestini, supra, 99 Cal.App.4th at p. 93, internal citations
“In order to succeed in their attempt to remove their case from the workers’
compensation law, appellants first had to show an ‘injury.’ They then had to
prove that the injury was aggravated by Firestone’s fraudulent concealment of
the existence of the injury and its connection with the employment.” (Santiago v.
Firestone Tire & Rubber Co. (1990) 224 Cal.App.3d 1318, 1330 [274 Cal.Rptr.
576], internal citation omitted.)
“The Supreme Court in Johns-Manville recognized that the aggravation of an
injury that results when an employer fraudulently conceals the injury’s cause is a
harm distinct from the injury itself. For this reason, aggravation that results
when an employer fraudulently conceals an injury’s cause remains actionable
even though the injured party has recovered workers compensation benefits for
the injury itself.” (Aerojet General Corp. v. Superior Court (1986) 177
Cal.App.3d 950, 956 [223 Cal.Rptr. 249], internal citation omitted.)
Secondary Sources
2 Witkin, Summary of California Law (11th ed. 2017) Workers’ Compensation,
§§ 50, 51
Chin et al., California Practice Guide: Employment Litigation, Ch. 15-F, California
Workers’ Compensation Act Preemption, ¶¶ 15:526.1, 15:570, 15:570.5-15:570.6,
15:590 (The Rutter Group)
1 Herlick, California Workers’ Compensation Law (6th ed.), Ch. 12, Tort
Actions - Subrogation, § 12.20 (Matthew Bender)
1 California Employment Law, Ch. 20, Liability for Work-Related Injuries,
§ 20.12[1][c] (Matthew Bender)
1 Levy et al., California Torts, Ch. 10, Effect of Workers’ Compensation Law,
§ 10.11[1][d] (Matthew Bender)
51 California Forms of Pleading and Practice, Ch. 577, Workers’ Compensation,
§§ 577.314[3], 577.525 (Matthew Bender)
23 California Points and Authorities, Ch. 239, Workers’ Compensation Exclusive
Remedy Doctrine (Matthew Bender)

© Judicial Council of California.