California Labor Code Section 3852
Section 3850 et seq. contains the subrogation provisions of the Workers' Compensation Act. (Roe v. Workmen's Compensation Appeals Bd. (1974) 12 Cal.3d 884.)
In the workers' compensation context, subrogation refers to the substitution of the employer who has paid benefits for an employee's injury, in place of the injured employee, in an action against a third party tortfeasor who allegedly caused the injury. (Quinn v. State of California (1975) 15 Cal.3d 162, 167.)
Section 3852 reads in relevant part:
"The claim of an employee, including, but not limited to, any peace officer or firefighter, for compensation does not affect his or her claim or right of action for all damages proximately resulting from the injury or death against any person other than the employer. Any employer who pays, or becomes obligated to pay compensation, or who pays, or becomes obligated to pay salary in lieu of compensation, or who pays or becomes obligated to pay an amount to the Department of Industrial Relations pursuant to section 4706.5, may likewise make a claim or bring an action against the third person."
Section 3852 authorizes an employer who has paid compensation to an injured employee to bring an action against a third party responsible for the damages proximately caused by the employee's injury. An employer's subrogation rights include the right to sue the tortfeasor responsible for the initial industrial injury and anyone who causes "subsequent tortious injury which also increases the employer's liability for compensation." (Abdala v. Aziz (1992) 3 Cal.App.4th 369, 375.)
In Abdala v. Aziz, supra, 3 Cal.App.4th at pages 375-377, a subsequent automobile accident had aggravated an employee's existing workplace injury.
The carrier for the injured party's employer was entitled under section 3852 to recover reimbursement of the additional compensation payments made by the employer because of the accident.
The employer's claim there was based on the right of subrogation because it was dependant upon the employee's claim against the third party.
If successful in the subrogation action, under section 3856 the employer may recover any payments made to the employee plus attorney fees and costs. Any excess is payable to the employee. ( 3856, subd. (a).)