CACI No. 3963. No Deduction for Workers' Compensation Benefits Paid

Judicial Council of California Civil Jury Instructions (2017 edition)

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3963.No Deduction for Workers’ Compensation Benefit Paid
Do not consider whether or not [name of plaintiff] received workers’
compensation benefit for [his/her] injuries. If you decide in favor of
[name of plaintiff], you should determine the amount of your verdict
according to my instructions concerning damages.
New September 2003; Revised December 2009
Directions for Use
This instruction is intended for use in conjunction with a special verdict form, in
which case the judge can make any necessary deductions if double recovery is an
issue. It may also be read in cases in which there are no allegations regarding the
employer’s comparative fault.
Sources and Authority
• If the employer has not been negligent, the workers’ compensation benefit do
“not constitute an impermissible double recovery but rather a payment from a
source wholly independent of the wrongdoer.” (Curtis v. State of California ex
rel. Department of Transportation (1982) 128 Cal.App.3d 668, 682 [180
Cal.Rptr. 843].)
• “ ‘The average reasonably well-informed person who may be called to serve
upon a jury knows that a workman injured in his employment receives
compensation. It is a delusion to think that this aspect of the case can be kept
from the minds of the jurors simply by not alluding to it in the course of the
trial.’ ” (Berryman v. Bayshore Construction Co. (1962) 207 Cal.App.2d 331,
336 [24 Cal.Rptr. 380], internal citations omitted.)
• “To prevent a double recovery, the court may instruct the jury to segregate
types of damage as between the employee and employer, awarding to the
employee only those tort damages not recoverable by the employer.”
(Demkowski v. Lee (1991) 233 Cal.App.3d 1251, 1259 [284 Cal.Rptr. 919],
footnote omitted.)
• “Alternatively, the jury may generally be instructed on the types of tort
damages to which the employee may be entitled and then given a special
verdict form that requires the jury to fin whether the defendant was negligent,
whether the negligence was the proximate cause of the employee’s injuries,
what the employee’s total tort damages are, without taking into account his or
her receipt of workers’ compensation benefits and what the reasonable amount
of benefit paid by the employer were. Thereafter, the court enters individual
judgments on the special verdict for the amounts to which the employee and
employer are entitled.” (Demkowski, supra, 233 Cal.App.3d at p. 1259, footnote
• “Prior to Proposition 51, a negligent third party was allowed an offset for the
workers’ compensation benefit paid to the plaintiff. This prevented double
recovery under the then-existing joint and several liability rule. Proposition 51,
however, limited joint and several liability to plaintiff’s economic damages.”
(Rosales v. Thermex-Thermatron, Inc. (1998) 67 Cal.App.4th 187, 197 [78
Cal.Rptr.2d 861].)
• “The Espinoza approach has provided an effective solution for pre-verdict
settlements, and we believe that it is also the most suitable means of dealing
with workers’ compensation benefits. (Torres v. Xomox Corp. (1996) 49
Cal.App.4th 1, 37 [56 Cal.Rptr.2d 455].)
Secondary Sources
2 Witkin, Summary of California Law (10th ed. 2005) Workers’ Compensation,
§§ 20, 24–26, 31, 34, 39–42
1 Levy et al., California Torts, Ch. 10, Effect of Workers’ Compensation Law,
§ 10.10 (Matthew Bender)
51 California Forms of Pleading and Practice, Ch. 577, Workers’ Compensation,
§ 577.319 (Matthew Bender)

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