In this guide11 sections
- Key takeaways
- What workers’ comp covers for a brain injury
- What workers’ comp doesn’t cover
- Common third-party claims in work brain injuries
- Damages a third-party case may recover
- How the comp claim and third-party case fit together
- A hypothetical example
- Deadlines
- Steps to protect both claims
- Frequently asked questions
- Talk to a California workers’ comp lawyer
If you suffered a traumatic brain injury (TBI) at work in California, workers’ comp generally covers your medical care and part of your lost wages, but it doesn’t pay for pain and suffering. If someone other than your employer caused or contributed to the injury, such as another driver, a subcontractor, a property owner or the maker of defective equipment, you may also have a separate personal injury claim against that “third party.” You can generally pursue both at once, but the two claims interact, and the deadline for a third-party lawsuit is usually two years or less.
Key takeaways
- Workers’ comp is usually your only remedy against your employer, but filing a comp claim doesn’t take away your right to sue a negligent third party (Labor Code §3852).
- A third-party case can seek damages comp doesn’t pay, such as pain and suffering, full lost earning capacity and, for a spouse, loss of consortium.
- Your employer or its insurer generally gets reimbursed from a third-party recovery for benefits it paid, and may get a credit against future benefits (Labor Code §§3856, 3858).
- Personal injury lawsuits generally must be filed within two years (Code of Civil Procedure §335.1). Claims against a public entity usually require a written claim within six months.
- Severe brain injuries can lead to higher comp benefits, including a conclusive presumption of total disability for a brain injury causing permanent mental incapacity (Labor Code §4662).
What workers’ comp covers for a brain injury
TBIs range from concussions with lingering headaches and memory problems to severe injuries that change a person’s ability to work and live independently. Workers’ comp may provide:
- Medical treatment reasonably required to cure or relieve the injury, including neurology, neuropsychology, imaging, cognitive and speech therapy, and rehabilitation (Labor Code §4600).
- Temporary disability at two-thirds of your average weekly earnings, between $264.61 and $1,764.11 a week for injuries in 2026, generally for up to 104 weeks within five years.
- Permanent disability based on your rating. A brain injury resulting in permanent mental incapacity is conclusively presumed to be a total permanent disability (Labor Code §4662(a)), and total permanent disability is paid for life.
- Psychiatric impairment. For injuries on or after January 1, 2013, a psychiatric condition caused by a physical injury generally can’t increase your rating, but there’s an exception for catastrophic injuries, which expressly include a severe head injury (Labor Code §4660.1(c)).
Our guide to workers’ comp benefits for TBIs covers these benefits in detail.
What workers’ comp doesn’t cover
Comp is a no-fault system with set formulas. It generally doesn’t pay for pain and suffering, emotional distress damages, the full value of lost future earning capacity, or a spouse’s loss of companionship. Under the exclusive remedy rule, you generally can’t sue your own employer for those damages, with narrow exceptions explained in our guide to Labor Code §3602.
A third-party claim is different. It’s an ordinary negligence or product liability case against someone who isn’t your employer, and it can seek full damages.
Common third-party claims in work brain injuries
| How the injury happened | Possible third party |
|---|---|
| Car or truck crash while driving for work | The other driver, or that driver’s employer if the driver was on the job |
| Struck by a falling tool or debris on a multi-employer construction site | Another subcontractor whose workers caused the hazard |
| Hard hat, ladder, harness or machine guard failed | The manufacturer or distributor of a defective product |
| Fall on a hazard at a customer’s or client’s property | The property owner or business that controlled the premises |
| Assault by a member of the public | The attacker, and possibly a business responsible for security |
Claims against a property owner or general contractor that hired your employer are harder. In a 2021 decision, the California Supreme Court reaffirmed that a hirer of an independent contractor generally delegates workplace safety to the contractor, so the hirer is usually not liable to the contractor’s workers. Exceptions exist, for example when the hirer retained control over the work and its negligent exercise of that control contributed to the injury, or failed to warn of a concealed hazard it knew or should have known about.
For crashes, see car accidents while driving for work.
Damages a third-party case may recover
- Past and future medical expenses, including long-term care
- Past lost wages and loss of future earning capacity
- Pain and suffering and emotional distress
- Loss of consortium for a spouse
- Punitive damages in rare cases, if clear and convincing evidence shows malice, oppression or fraud, such as despicable conduct in willful and conscious disregard of others’ safety (Civil Code §3294)
How the comp claim and third-party case fit together
You can generally file your comp claim right away and pursue the third-party case at the same time. Key rules:
- Both sides must be notified. If you or your employer sues the third party, the one who files must promptly give the other a copy of the complaint. The other may join the case or have its own case consolidated (Labor Code §3853).
- The employer gets reimbursed. From a judgment, litigation expenses and attorney’s fees are paid first, then the employer is reimbursed for compensation it paid, and the rest goes to you (Labor Code §3856).
- Future benefits may be offset. After your recovery, the employer may be relieved of paying further compensation up to the amount of your net recovery (Labor Code §3858).
- The employer can’t secretly be cut out. A judgment can’t be satisfied without giving the employer notice and a chance to perfect its lien.
How these rules apply depends heavily on the facts, including who was at fault and how a settlement is structured, which is one reason the two cases should be coordinated.
A hypothetical example
Elena, a home health aide, is driving between patients when a delivery truck runs a red light and hits her car. She suffers a concussion with memory problems that keep her off work for months.
Elena files a workers’ comp claim and receives treatment and temporary disability. Because the truck driver was at fault, she may also have a negligence claim against the driver and the driver’s employer for pain and suffering and her full wage loss. If she recovers in that case, her employer’s insurer will generally be reimbursed for what it paid and may take a credit against future benefits.
Deadlines
| Claim | General deadline |
|---|---|
| Report the injury to your employer | Within 30 days (Labor Code §5400) |
| Workers’ comp proceedings | Generally one year (Labor Code §5405) |
| Personal injury lawsuit against a private third party | Two years (Code of Civil Procedure §335.1) |
| Written claim against a public entity, such as a city bus or public agency | Six months (Government Code §911.2) |
Steps to protect both claims
- Get medical care right away and describe every symptom, including confusion, headaches, light sensitivity and mood changes. Brain injuries are often missed early. If no one saw it happen, read how to prove a brain injury without a witness.
- Report the injury in writing and file the DWC-1 claim form.
- Preserve evidence of third-party fault: police reports, photos, the names of other companies on the site, and the equipment involved. Don’t let defective equipment be thrown away.
- Don’t give recorded statements to another party’s insurer before getting advice.
- Calendar the deadlines, especially the six-month public entity claim deadline.
Frequently asked questions
Can I sue my employer for a brain injury?
Usually not. Workers’ comp is generally the exclusive remedy against your employer, with narrow exceptions such as a willful physical assault by the employer or an employer that illegally failed to carry comp insurance.
Will a third-party lawsuit affect my workers’ comp benefits?
Your comp benefits continue while the lawsuit is pending. If you recover, the employer is generally reimbursed and may get a credit against future benefits.
Do I have to choose between comp and a lawsuit?
No. You can generally pursue both, but they should be coordinated so settlement terms and the employer’s lien are handled correctly.
What if a coworker caused my injury?
A coworker generally isn’t a third party you can sue. Labor Code §3601 makes comp the exclusive remedy against a coworker, with exceptions for a willful and unprovoked physical act of aggression or a coworker’s intoxication.
Is a concussion serious enough for a claim?
It can be. Even a “mild” TBI can cause lasting symptoms. Treatment and any time off work are covered if the injury is work-related.
Talk to a California workers’ comp lawyer
Employees First Labor Law represents workers exclusively, including workers with brain injuries. We offer free virtual consultations to review your comp claim and whether another party may be responsible. We work on contingency: our fee is a percentage of what we recover for you. How case costs are handled is spelled out in your written fee agreement. Contact us online or call (310) 853-3461. The DWC Information and Assistance Unit also gives free help with comp claims.
This article is general information about California law as of 2026, not legal advice for your situation. Reading it does not create an attorney-client relationship.
