CACI No. 3965. No Deduction for Workers’ Compensation Benefits Paid
Judicial Council of California Civil Jury Instructions (2023 edition)
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3965.No Deduction for Workers’ Compensation Benefits Paid
Do not consider whether or not [name of plaintiff] received workers’
compensation benefits for [his/her/nonbinary pronoun] 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; Renumbered from CACI No. 3963
November 2018
Directions for Use
This instruction is intended for use in conjunction with a special verdict form if the
judge may need to make deductions from the verdict to avoid a double recovery. It
may also be read if there are no allegations regarding the employer’s comparative
fault.
Sources and Authority
• “Since the employer was not negligent, the death benefits paid did not constitute
an impermissible double recovery but rather a payment for plaintiff’s loss 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].)
• “Here the collateral source was workers’ compensation benefits paid by the
[defendant]’s policy. Under the general principles just described, this would not
be an independent source; defendant is the policyholder, so the collateral source
rule would not apply. Yet the California Supreme Court held that the rule did
apply in a case in which an employee received benefits from the employer’s
workers’ compensation policy and then sued a third party tortfeasor, the
compensation insurer having waived its right of subrogation against the third
party.” (Lee v. West Kern Water Dist. (2016) 5 Cal.App.5th 606, 637 [210
Cal.Rptr.3d 362] [action by employee against employer on claim alleged to not
be within scope of employment].)
• “ ‘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
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to which the employee may be entitled and then given a special verdict form
that requires the jury to find 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 benefits
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 omitted.)
• “Prior to Proposition 51, a negligent third party was allowed an offset for the
workers’ compensation benefits 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 preverdict
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 (11th ed. 2017) Workers’ Compensation,
§§ 23, 28-30, 35
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)
3966-3999. Reserved for Future Use
CACI No. 3965 DAMAGES
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© Judicial Council of California.
