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This case involves the applicability of the workers’ compensation exclusivity rule to an unusual set of facts.

Plaintiff Kathy Lee was employed as a cashier of defendant West Kern Water District, at the district’s office, working behind a partition where customers came to pay their water bills, often in cash.

She sued the district and four coemployees for assault and intentional infliction of emotional distress after the coemployees staged a mock robbery with Lee as the victim. The district provided its employees with some training on how to respond to a robbery. The complaint alleged that four supervisors formed a plan to test how the district’s female employees would respond if they believed they were really being robbed.

In the mock robbery, one of the district’s managers entered the district’s office in a mask and confronted Lee at the cashier’s window with a note demanding money and saying he had a gun. Lee, who had not been informed of the planned mock robbery, handed over the money and subsequently was treated for psychiatric injury.

The complaint alleged that after the robbery, Lee was crying, shaking, and nauseous and finally had to go home. She later suffered from fears, depression, nightmares, headaches, loss of appetite, and ongoing nausea. She sought psychological treatment and had to use all her accrued sick leave and vacation time during an extended absence from work.

Lee claimed that, even if the facts satisfied the Labor Code section 3600 conditions for an exclusive workers’ compensation remedy, she could still recover damages in this lawsuit because an exception applied, the assault exception of Labor Code section 3602, subdivision (b)(1).

A jury instruction was allowed pertaining to the applicability of the exclusive workers’ compensation remedy was requested by Lee and objected to by defendants. It said “employer conduct is considered outside the scope of the workers’ compensation scheme when the employer steps outside of its proper role or engages in conduct unrelated to the employment.”

The jury awarded her $360,000, however the trail court granted the motion for a new trial. The trial court reasoned that, because the complaint conceded the workers’ compensation exclusivity rule applied unless the assault exception was proven, the jury should not have been instructed with CACI No. 2800, which said the defense had to prove the elements of the exclusivity rule. Instead, the jury should have been told the exclusivity rule applied unless Lee established the assault exception.

The order granting a new trial was reversed in the published case of Lee v Western Kern Water District.

Labor Code section 3602, subdivision (a), repeats the rule that workers’ compensation benefits are the exclusive remedy for industrial injury. Subdivision (b) of that section lists three exceptions to the exclusivity rule. The one pertinent here is: “Where the employee’s injury or death is proximately caused by a willful physical assault by the employer.” (Lab. Code, § 3602, subd. (b)(1).) Subdivision (c) makes explicit the converse of the exclusivity rule, i.e., that ordinary civil remedies apply to injuries falling outside the workers’ compensation system: “In all cases where the conditions of compensation set forth in Section 3600 do not concur, the liability of the employer shall be the same as if this division had not been enacted.” (Lab. Code, § 3602, subd. (c).)

Labor Code section 3601 extends the exclusivity rule to bar tort actions against coemployees who cause injury while acting in the scope of employment.