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Timoteo Alejandro Martinez Ildefonso worked at a Whole Foods store in Venice, California. While on a 15-minute break, he left the store and was hit by a pickup truck while using a crosswalk at a nearby intersection. The driver stopped, spoke with him, then returned to the car and drove away.

Ildefonso walked back to the store where he told his supervisors that he was injured and wanted to go home. A store employee later drove him home. He died a few hours later.

An administrative law judge and the California Workers’ Compensation Appeals Board determined that the decedent’s injuries arose out of his employment and occurred in the course of that employment.

The decedent was survived by his wife, Martha Eve Jimenez, and three children. Plaintiffs filed this wrongful death action against several parties including the decedent’s employer, Mrs. Gooch’s. Plaintiffs rely on two narrow exceptions to the general principle that workers’ compensation is the exclusive remedy for workplace injury: dual capacity and fraudulent concealment (Lab. Code, § 3602, subd. (b)(2)).

As to the dual capacity exception, plaintiffs allege that in addition to its role as the decedent’s employer, Mrs. Gooch’s acted as an emergency first aid responder after the decedent was injured in the crosswalk. In that capacity, Mrs. Gooch’s caused a second injury for which it is liable.

As to the fraudulent concealment exception, plaintiffs allege that store employees knew the decedent was injured but failed to disclose to him that his injury was connected to his employment. Plaintiffs allege that if the other employees had both disclosed that the injury was work related and treated it as such, they would have called an ambulance and instructed the decedent to wait to receive an examination by a paramedic.

Mrs. Gooch’s demurred The court found neither exception applied and sustained the demurrer without leave to amend. The Court of Appeal affirmed the dismissal in the published case of Jimenez v. Mrs. Gooch’s Natural Food Markets, Inc. -B322732 (September 2023).

Plaintiffs attempt to analogize the present case to the California Supreme Court decision in Duprey v. Shane (1952) 39 Cal.2d 781 and similar cases in which an injured employee was allowed to pursue a medical malpractice claim against an employer who was also a treating medical professional.

But this case is plainly distinguishable from those cases because plaintiffs do not allege that either Mrs. Gooch’s or the store employees who rendered first-aid assistance were medical professionals. Instead, plaintiffs apparently seek to expand the dual capacity doctrine to include a negligent undertaking theory. Plaintiffs cite no case holding that a negligent undertaking theory is viable in these circumstances nor do they offer any legal support for their suggestion that we expand the scope of the dual capacity exception.”

The fraudulent concealment exception is found in Labor Code section 3602, subdivision (b)(2). To withstand a demurrer, an employee must “in general terms” plead facts that if found true by the trier of fact, establish the existence of three essential elements: (1) the employer knew that the plaintiff had suffered a work-related injury; (2) the employer concealed that knowledge from the plaintiff; and (3) the injury was aggravated as a result of such concealment.

However, the opinion concluded that “[t]he exception does not apply where the employee was aware of the injury at all times.This point is fatal to plaintiffs’ argument. The complaint does not allege that the decedent was unaware of his injury.” (Silas v. Arden (2012) 213 Cal.App.4th 75, 91.)