Summary: Workers Compensation insurance stood for more than 50 years as the sole recourse of employees injured on the job. This “exclusive remedy” embodied in workers compensation statutes was designed to provide injured employees with a schedule of benefits in exchange for their giving up the right to sue the employer. The statutes provided immunity to employers from common law actions brought by their employees seeking payment for injuries suffered arising out of and in the course of employment.

However, since the case of Duprey v. Shane, 249 P.2d 8 (Cal.1952)—in which the California Supreme Court ruled that an employee whose industrial injury was aggravated by the treatment of her physician-employer could sue the physician for malpractice despite the rule of exclusivity because the physician-employer had a dual legal personality with respect to the injured employee—various legal doctrines have eroded the exclusive remedy concept and the seemingly clear cut insurance situation. For example, common law suits against employers have been successfully brought on the basis of dual capacity, intentional tort, and third-party-over doctrines.

This article discusses the erosion of the exclusive remedy rule.