Segregation of Employee Damages Claim Waiver
Labor Code section 3859, subdivision (a) provides:
"No release or settlement of any claim under this chapter as to either the employee or the employer is valid without the written consent of both." Subdivision (b) of section 3859, however, goes on to say:
"Notwithstanding anything to the contrary contained in this chapter, an employee may settle and release any claim he may have against the third party without the consent of the employer. Such settlement or release shall be subject to the employer's right to proceed to recover compensation he has paid in accordance with Section 3852."
Discussing the 1971 amendments which added subdivision (b) to section 3859, the Supreme Court in Board of Administration v. Glover (1983) 34 Cal. 3d 906 [196 Cal. Rptr. 330, 671 P.2d 834] stated:
"The obvious purpose of these amendments was to permit an employee to segregate his own damage claim against a third party from his employer's claim against that third party for reimbursement for workers' compensation benefits paid. the employee thus is permitted to settle his own claim for a sum exclusive of amounts he had already received in the form of a workers' compensation award without jeopardizing the employer's subrogation right." (34 Cal. 3d at pp. 913-914.)