JEFFERSON, J.* I dissent.
I am unable to agree with the majority’s holding that the Workers’ [848]Compensation Appeals Board (hereinafter the Board) is required to apply the principles of comparative negligence, developed in Li v. Yellow Cab Co. (1975) 13 Cal.3d 804 [119 Cal.Rptr. 858, 532 P.2d 1226, 78 A.L.R.3d 393], when an employer claims a credit after an employee has made an independent settlement with a third party and then seeks before the Board disability compensation benefits from the employer. The majority interprets Labor Code section 3861 as a delegation of authority to the Board to make the necessary determinations to apply the rule established by the majority—that an employer shall be allowed a credit under the Labor Code against his liability for disability compensation in the amount of an employee’s recovery from a third party, but only to the extent the employer’s liability for worker’s compensation exceeds his share of responsibility for the employee’s full tort damages. This rule, according to the majority, requires the Board to determine first, whether the employer was negligent, and, if so, then to determine (1) the degree of fault of the employer, (2) the total damages to which the employee is entitled, and then to deny the employer credit until the ratio of his contribution to the employee’s damages corresponds to his proportional share of fault. But once the employer’s workers’ compensation contribution reaches this level, the employer must then be granted a credit for his further workers’ compensation liability in the full amount of the employee’s third-party recovery available under Labor Code section 3861.
I
The Effect of the 1971 Amendments to Labor Code Sections 3859 and 3860 Upon an Employer’s Credit Rights in a Proceeding Before the Workers’ Compensation Appeals Board
The majority considers first whether the 1971 amendments to Labor Code sections 3859 and 3860 had any effect on an employer’s credit rights under Labor Code sections 3858 and 3861—the two sections which provide for an employer’s credit remedy before the Board when the injured employee seeks permanent disability compensation after having effectuated a tort recovery against a third party tortfeasor by way of settlement or judgment. It is conceded that the Legislature modified the provisions of Labor Code sections 3859 and 3860 but did not make any changes in the provisions of Labor Code sections 3858 and 3861.
[849]The 1971 amendment to Labor Code section 3859 added a subdivision which reads as follows: “(b) Notwithstanding anything to the contrary contained in this chapter, an employee may settle and release any claim he may have against a 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.” (Italics added.) Labor Code section 3860, subdivision (b), was amended to read: “(b) Except as provided in Section 3859, the entire amount of such settlement, with or without suit, is subject to the employer’s full claim for reimbursement for compensation he has paid- or become obligated to pay and any special damages to which he may be entitled under Section 3852, together with expenses and attorney fees, if any, subject to the limitations in this section set forth.” (Italics added.)
The majority reasons that the fact that no legislative changes were made in either section 3858 or section 3861 of the Labor Code creates an inference that the Legislature did not have the employer’s credit in mind when it amended Labor Code section 3859. The majority considers that the language of Labor Code section 3859, subdivision (b), constitutes an ambiguous expression of legislative intent and concludes that the amendments to Labor Code sections 3859 and 3860 cannot be construed as expressing a legislative intent that an employer should be barred from obtaining, in a Board proceeding pursuant to Labor Code section 3861, a credit against his liability to the injured employee for permanent disability payments in the amount of the injured employee’s recovery obtained by way of settlement from a third party tortfeasor.
I disagree with this conclusion of the majority. I see nothing ambiguous about the Legislature’s intent in amending Labor Code sections 3859 and 3860 but not amending Labor Code sections 3858 and 3861. I think the Legislature did have in mind the employer’s credit when it amended Labor Code section 3859. In my view, the 1971 amendments to Labor Code sections 3859 and 3860 should be interpreted as precluding any allowance, as a credit to the employer to be applied against his liability for disability compensation, of the amount of an injured employee’s recovery from a third party tortfeasor, obtained by way of an independent settlement as contrasted with recovery by way of judgment against the third party tortfeasor.
It is to be noted that Labor Code section 3860, subdivision (b), makes the amount of the employee’s third party settlement subject to the employer’s claim for reimbursement for compensation the employer has [850]paid or “become obligated to pay,” but such right of reimbursement is made subject to Labor Code section 3859 by virtue of the beginning phrase of subdivision (b) of section 3860 which reads as follows: “Except as provided in Section 3859.” Thus, even though section 3860, subdivision (b), makes the employee’s settlement subject to reimbursement for compensation which the employer has “become obligated to pay” as well as for compensation which he “has paid,” these provisions are made subject to section 3859, subdivision (b), the provisions of which make the employee’s third party settlement amount subject to one remedy by the employer and one remedy only—“to recover compensation he has paid in accordance with Section 3852.” (Italics added.) This limitation of remedy for the employer is made by Labor Code section 3859, subdivision (b), although Labor Code section 3852 authorizes an action against the third party by “[a]ny employer who pays, or becomes obligated to pay compensation.’'' (Italics added.)
I construe section 3859, subdivision (b), as clearly and unequivocally limiting an employer’s subrogation remedy in the event of an employee’s recovery from the third party—by way of settlement rather than by way of a judgment—to an action against the third party for the amount of compensation already paid by the employer. In the case of a recovery by an injured employee against a third party tortfeasor by way of a settlement rather than a judgment, Labor Code section 3859, subdivision (b), by its express and unambiguous terms, has wiped out any remedy by the employer to secure a credit, to be applied to the employee’s third party settlement recovery, in a subsequent proceeding before the Board in which the employee seeks to obtain from the employer permanent disability compensation and additional medical liability.
Although Labor Code section 3860 speaks in terms of compensation which an employer has become obligated to pay, the shifting to the third party tortfeasor of this liability was simply not provided for by Labor Code section 3859, subdivision (b). In similar fashion, Labor Code section 3861 speaks in terms of the employer obtaining before the Board a credit “to be applied against his liability for compensation.” (Italics added.) In amending section 3859, subdivision (b), the Legislature’s failure to use language to provide that an employee’s recovery from a third party by way of settlement shall be subject to the employer’s right to proceed before the Board to obtain a credit in the amount of this settlement recovery to be applied against his liability to the employee for compensation, indicates in a fairly decisive way that the provisions of Labor Code section 3861 were intended to be affected by the limiting language specifically used in Labor Code section 3859, subdivision (b).
[851]In addition, it is significant that Labor Code section 3858 provides that, after payment of the employer’s lien in the third party suit, the employer is relieved from the obligation to pay further compensation to the employee (by way of credit) “up to the entire amount of the balance of the judgment, if satisfied, without any deduction.” (Italics added.) Labor Code section 3858 contains no provision for an employer’s relief from further compensation liability to an injured employee where the employee has effectuated a settlement with the third party instead of proceeding to obtain a judgment. It is equally significant that Labor Code section 3861 provides that, in a Board proceeding, the employer is entitled to credit against the employer’s liability for compensation in the amount of the employee’s recovery from a third party by way of “settlement or after judgment.” (Italics added.)
Since, in 1971, Labor Code section 3858 did not provide for an employer’s right to credit against his liability for compensation, in the amount of the employee’s third party recovery by way of settlement, but only a right to credit in the amount of the employee’s third party recovery by way of judgment, the failure of the Legislature to refer to section 3858 in amending section 3859 is of no moment on the question of legislative intent. But the failure of the 1971 amendment of section 3859 to refer to the credit provisions of section 3861, insofar as the employee’s third party recovery by way of settlement as distinct from recovery by way of judgment is concerned, fortifies the conclusion that, after the 1971 amendment to Labor Code section 3859, Labor Code section 3861 no longer provided an employer with the right of a credit against his liability for compensation in the amount of the employee’s third party recovery by way of settlement rather than by way of judgment.
It is my view, therefore, that the 1971 amendments to Labor Code sections 3859 and 3860 can logically and rationally be interpreted in only one way. These amendments permit an injured employee and a third party, alleged to be responsible for the injury, without the consent of the employer, to enter into a settlement after an action has been filed against the third party, with the intentional result that the employer must obtain reimbursement or credit, if at all, solely from the third party in an action against such third party pursuant to the provisions of Labor Code section 3852. The employee’s recovery from a third party by way of settlement, rather than by way of judgment, is intended to be free from any claim of reimbursement or credit by the employer irrespective of whether the employer was negligent or not. Whether this difference between the legislative treatment of an employee’s recovery from a third party by way [852]of settlement and an employee’s recovery from a third party by way of judgment is logically or rationally sound is not for this court to decide.
Furthermore, it is certainly not for this court to rectify what it deems to' be omissions of sound public policy provisions from legislative enactments. This principle was stated many years ago in Dodds v. Stellar (1947) 30 Cal.2d 496, 506 [183 P.2d 658], in the following cogent language: “These several statutory provisions clearly define the rights of the parties and completely cover the field. They emphasize the separate and distinct interest of the employer or its insurance carrier in the avails of the damage recovery for its full protection and leave no room for the evaluation of the rights of the parties in a manner inconsistent with the legislative plan. If there is to be any change in these statutory provisions defining the rights of the parties, the suggestion for such change should be addressed to the Legislature rather than to the courts.” (Italics added.)
II
The Application of Comparative Negligence Principles to a Proceeding Before the Workers’ Compensation Appeals Board in Which an Employer Claims a Credit Against His Liability for Compensation in the Amount of an Injured Employee’s Settlement Recovery From a • Third Party Injects the Concept of Fault in Violation of Article XIV, Section 4 of the California Constitution
The majority’s holding modifies the rule of law established in Roe v. Workmen’s Comp. Appeals Bd. (1974) 12 Cal.3d 884 [117 Cal.Rptr. 683, 528 P.2d 771], By way of dicta, the majority also announces a modification of the rule of law established by Witt v. Jackson (1961) 57 Cal.2d 57 [17 Cal.Rptr. 369, 366 P.2d 641]. The Roe case deals with an employer’s credit rights when an injured employee has obtained a recovery for his injury against a third party. The Witt case deals with an employer’s reimbursement rights when an injured employee has obtained a recovery for his injury against a third party. The difference between the two situations makes a substantial difference in any justification for modifying the principles of law involved in the two cases. Thus, an employer’s right to credit is distinguished from his right to reimbursement by reference to both the time and the forum in which the employer seeks to shift his liability for workers’ compensation to the employee’s recovery against the third party tortfeasor.
[853]When the employer seeks reimbursement out of the proceeds recovered by the employee from the third party, it is to recoup money payments which the employer has previously paid to the injured employee in workers’ compensation benefits. On the other hand, when the employer seeks a credit, he is seeking an allowance against his future liability for compensation benefits to the injured employee in the event the employee secures a tort recovery from a third party and subsequently applies to the Board for further workers’ compensation benefits. In this latter situation, the employer seeks to get relieved of the obligation to pay further benefits to the employee up to the entire amount of the employee’s third party recovery. The employer is credited with this amount as if he had in fact paid it himself. The forum for the adjudication of the credit issue is the Board whereas the forum for the adjudication of the reimbursement issue is the civil courts.
In the Roe case, this court held that where an injured employee has secured a recovery for his injury from a third party, any concurrent negligence of the employer bars his right to a credit under Labor Code section 3861 against his workers’ compensation liability in a Board proceeding, and that if the employer’s negligence has not been adjudicated in the third party action, the employee is entitled to have it adjudicated before the Board. (See Gregory v. Workmen’s Comp. Appeals Bd. (1974) 12 Cal.3d 899 [117 Cal.Rptr. 694, 528 P.2d 782].)
It is my view that the rule of law announced in Roe should not be modified to require the Board to allow a negligent employer some credit against his liability for further workers’ compensation benefits for the amount of the recovery by the employee of tort damages against a third party. Although I would interpret Labor Code section 3861 as not authorizing a credit to the employer at all against his liability for permanent disability benefits when the injured employee has made a third party settlement recovery because of the 1971 amendments to Labor Code sections 3859 and 3860, I certainly can see no justification for changing the rule of Roe which precludes any credit to a negligent employer, regardless of the comparative degree of his negligence or fault, because of the decisions in Li and in American Motorcycle Assn. v. Superior Court (1978) 20 Cal.3d 578 [146 Cal.Rptr. 182, 578 P.2d 899], There has been no legislative change in Labor Code section 3861 since the decision in Roe in 1974 to justify a judicial change in interpretation based on legislative action. Nor has there been, since the Roe decision in 1974, any legislative changes in other sections of the Labor Code such as [854]sections 3858, 3859 and 3860 to justify a finding of any different legislative intent with respect to section 3861.
The Witt court held that the Labor Code provisions which provided reimbursement remedies to employers were to be construed to prohibit access to such remedies by negligent employers. The court stated: “In the absence of express terms to the contrary, these provisions must be deemed to be qualified by Civil Code section 3517 which provides that ‘No one can take advantage of his own wrong.’ ” (Witt, supra, 57 Cal.2d 57, 72.)
In reaching its result, the Roe court followed the same process of reasoning used by the Witt court. Thus, the Roe court points out that Labor Code sections 3852, 3854, 3856 and 3860, subdivision (b), if read literally, permit an employer to recoup his compensation payments from the negligent third party; that it is the substantive law that rejects his recoupment if he has been concurrently negligent. In similar fashion, Roe holds that Labor Code section 3861, which is the procedural rule for permitting employers to claim a credit against future compensation liability in the amount of an employee’s recovery from a third party, is subject to the application of the substantive law declared by Witt with the result that a negligent employer may not obtain such a credit in spite of the clear language of Labor Code section 3861.
Under Roe, therefore, an injured employee, as an applicant before the Board for permanent compensation benefits, is permitted to raise the Witt v. Jackson defense of the employer’s negligence. Upon a finding that the employer was negligent, the employer may not obtain a credit against his liability for permanent disability benefits sought by the injured employee. The damages recovered by the employee for his injuries by way of a •settlement from a third party may not be looked to for credit by a negligent employer.
In analyzing the legal principles set forth in Witt and Roe for purposes of determining whether they are appropriate for application of comparative negligence or comparative fault rules of law, we cannot overlook the fact that the legal principles decided by Witt deal with the reimbursement rights of a negligent employer and are applied in court proceedings while the Roe doctrine that a negligent employer, regardless of his relative degree of negligence, is not entitled to credit comes into play only in an administrative proceeding before the Board. Today’s majority decision determines, albeit by dicta, that the Witt rule of law is [855]to be modified because of Li and American Motorcycle so that the negligent employer is no longer to be denied any reimbursement from the proceeds of the employee’s recovery against the third party but is to receive partial reimbursement in the amount by which his compensation liability exceeds his proportional share of the injured employee’s recovery based on comparative negligence principles.
As I have indicated previously, the question of whether Witt should be modified by the injection of comparative negligence or comparative fault principles involves different considerations than those involved in the question actually before this court in the case at bench of whether Roe should be so modified. The fact that the Witt reimbursement question is decided in the injured employee’s court action against the third party and the Roe credit question is decided in a workers’ compensation proceeding before the Board is indicative of the different considerations that underlie a determination of the questions presented. Because of this difference, and the fact that the Witt reimbursement question is not presented by the factual situation before us, I shall focus my attention on the majority’s holding with respect to the modification of Roe in a workers’ compensation proceeding before the Board.
The majority seeks to justify its holding on a theory that the same considerations of “logic, practical experience, and fundamental justice” that constituted the basis for Li (Li, supra, 13 Cal.3d 804, 808) requires a modification of the Roe principle to accommodate a comparative negligence system. I find this asserted justification unpersuasive and untenable. In my view, the majority’s modification of Roe, by inserting principles of comparative negligence into the workers’ compensation system, is substantially, if not totally, lacking in logic, practical experience, or fundamental justice—the same principles which motivated the Li court to adopt a system of comparative negligence for tort cases administered by courts.
In reaching its decision, the majority purports to apply a caveat of Li which mandates that this court proceed with caution when considering the application of comparative negligence principles to a system of workers’ compensation law which emphasizes the principle of employer liability without fault. But, on the contrary, the majority decision indicates that the majority has completely disregarded the caveat of Li, has thrown caution to the winds, and has proceeded boldly, recklessly and without caution to apply comparative negligence principles to the workers’ compensation system in complete disregard of one element of [856]the heart of this system, mandated by the California Constitution, that the compensation for workers who sustain injury in the course of their employment, must be predicated on employers’ liability “irrespective of the fault of any party.” (Cal. Const., Art. XIV, § 4.)
The majority rejects the arguments advanced by the injured employee and the Board in the case at bench that a modification of the legal principle established by Roe to make applicable comparative negligence principles set forth in Li would unjustifiably violate the purposes of both cases and, by requiring the Board to apply Li principles in a proceeding in which the injured employee seeks permanent disability benefits and the employer seeks a credit because of the employee’s tort recovery of damages from a third party by way of settlement, would violate the provisions of article XIV, section 4 of the California Constitution, as set forth above. I find these arguments tenable and persuasive, and, contrary to the views of the majority, supported significantly by principles of “logic, practical experience, and fundamental justice.” (Li, supra 13 Cal.3d 804, 808.) In my view the majority’s holding in modifying Roe to permit a negligent employer to obtain a partial credit before the Board against his liability for permanent disability benefits by reason of the injured employee’s recovery from a third party by way of settlement constitutes a clear case of violation of the provisions of section 4 of article XIV of the California Constitution, which I have set forth above.
I have previously pointed out that, in holding that the reimbursement remedies provided by the Labor Code for employers are not available to negligent employers, the Witt court placed the result on the ground that the Labor Code sections providing for such reimbursement remedies are to be deemed qualified by Civil Code section 3517 which provides that “[n]o one can take advantage of his own wrong.” Does it not follow that, in precluding a negligent employer from obtaining a credit under Labor Code section 3861 by applying the Witt rationale, the same justification is applicable in Roe to preclude a negligent employer from profiting from his own wrong? If this is the logical basis for Roe, then the adoption of a rule of partial credit under comparative negligence principles rather than denying any credit at all constitutes a repudiation of this rationale. Even though it operates to a limited degree, the majority’s holding unquestionably permits a negligent employer to profit from his own wrong, while the Roe court refused to permit a negligent employer to profit at all from his own wrong. Since the Witt and Roe rules are justified by the no-profit-from-one’s-own-wrong principle set forth in Civil Code section 3517, the rule advanced by the majority today constitutes, without [857]adequate justification, a renunciation and repudiation of that same principle. In my view, Civil Code section 3517 proscribes the majority’s approach in the case at bench for the same compelling reason that that section sustained the holdings in Witt and Roe—to prevent a negligent employer, irrespective of the degree of his negligence, from taking advantage of his own wrong—whether by way of a total reimbursement or total credit or by way of a partial reimbursement or a partial credit.
The majority rejects the contentions of the injured employee and the Board that the application of comparative principles of negligence to “credit” proceedings before the Board under Labor Code section 3861 injects the concept of “fault” into the Board’s compensatory function contrary to the constitutional requirement that workers be compensated “irrespective of the fault of any party.” (See Cal. Const., art. XIV, § 4.) The answer of the majority to this contention is simply that the Roe court rejected the same contention in holding that the Board could make a determination of whether an employer had been negligent when credit was sought under Labor Code section 3861. The majority reasons that determinations by the Board of the issues required by application of comparative principles of negligence—the amount of the injured employee’s total damages, whether the employer was negligent, whether the third party was negligent, and the percentage of the employer’s negligence —are purely ancillary in character and do not require the Board to condition benefits to the employee upon the fault of any party. The majority thus concludes that the constitutional mandate (Cal. Const., art. XIV, § 4) against making compensation to workers depend on the fault of any party is not violated.
I disagree with this conclusion. The majority’s holding does not simply require the Board to determine issues of comparative negligence as purely ancillary or peripheral matters to adjust liability between the employer and third party without making the injured employee’s compensation dependent on the relative fault of the employer and the third party. We are dealing in the case at bench with the question of whether a negligent employer is entitled to a credit against his liability for a permanent disability award, sought by an employee, in the amount of the proceeds of a settlement obtained by the injured employee from a third party.
In order for the Board to determine the partial credit to be allowed the employer, the Board must adjudicate the following issues under the majority’s holding, and determine (1) the total damages of the employee, [858]including damage items solely recoverable as compensation from the employer and also other damage items recoverable from a third party such as pain and suffering; (2) whether the third party was negligent; (3) whether the employer was negligent; (4) whether the injured employee was negligent, and (5) the relative degree of fault of the employer out of the 100 percent fault made up of the employer’s, employee’s and the third party’s negligence. In the event the employee has made a settlement with two or more third parties, with one being sued on a negligence theory and another on strict liability in tort, the determination of comparative fault of the employer is further complicated.
Under Roe, an employer’s negligence precludes the allowance of any credit and the employee receives his full permanent disability award. Under the majority’s holding the allowance of a partial credit may well reduce the amount the employee will receive in permanent disability benefits from the employer. In such a case, the amount of the employee’s compensation benefits has unquestionably been affected by the “fault” of the employer. The employee has not been compensated, therefore, “irrespective of the fault of any party” as required by the constitutional mandate. Thus, in the case at bench, the Board determined that the injured employee, Jeffery L. Cole, was entitled to a permanent disability award of $8,085, less $2,270 advanced by the employer, leaving a balance of $5,815 due from the employer. Under the Roe doctrine, the employer was held to be negligent and thus not entitled to credit against this liability of $5,815 in any amount of the net $40,000 settlement proceeds received by employee Cole.
But under the majority’s holding, the Board would be required to determine Cole’s total damages, made up of an allowance for pain and suffering, the reasonable value of medical and hospital care, the reasonable value of time lost from work, the present cash value of earning capacity certain to be lost in the fpture, and to determine what portion of those total damages would constitute a permanent disability award Cole would be entitled to obtain from his employer. The total damages determined might be far in excess of the $60,000 gross settlement Cole obtained from the third party or far less than that sum. Certainly, the settlement figure may have no reasonable relationship to Cole’s total damages. The Board would then be required to determine the comparative negligence of Cole’s employer and the third party in order to arrive at the partial credit to which the employer would be entitled. After all of these determinations, Cole’s award of $5,815, or some other amount for permanent disability benefits due from the employer, could very well end [859]up being wiped out completely or diminished because of the partial credit to be allowed to the employer.
In any case in which an employee’s award of full permanent disability benefits is diminished because of a partial credit allowed to a negligent employer who is permitted to take advantage of the principle of comparative fault, the conclusion is compelling and inescapable that the employee’s benefits have been based in part upon the “fault” of his employer in violation of article XIV, section 4, of the California Constitution.
It is to be noted that, although an employee’s negligence can have no direct bearing upon the amounts he is to recover from the employer in temporary and permanent disability benefits, in a case in which the employee is negligent, the Board would, nevertheless, have to determine the percentage of such negligence in order to determine 100 percent of negligence of all parties and the relative percentage of negligence of the employer and third party for purposes of calculating the partial credit to which the employer would be entitled under the majority’s doctrine of comparative negligence.
The Board’s responsibility will be further intensified and aggravated if we have an injured employee’s settlement recovery obtained from a third party alleged to be responsible for the injury on the basis of a defective product manufactured by the third party. A further complication will be encountered if the injured employee obtains a separate settlement recovery from two third parties—one being sued on a negligence theory and the other on a strict-liability-in-tort theory for a defectively manufactured product. In the event of these possibilities, I assume that the majority would apply the holding of Safeway Stores, Inc. v. Nest-Kart (1978) 21 Cal.3d 322 [146 Cal.Rptr. 550, 579 P.2d 441], and require the Board to apply comparative fault principles between the negligent employer and the strictly liable third party tortfeasor.
It is manifestly apparent that any decrease in the award of permanent disability benefits to the injured employee by operation of the majority’s modification of Roe to compel application of comparative-fault determinations cannot be justified on any theory that it is necessary to prevent double recoveiy by the employee. The Roe court recognized that denying any credit to a negligent employee did not have this result. The grant of a partial credit, therefore, provides even less justification for any theory of necessity to prevent double discovery by the injured employee.
[860]III
The Application of Comparative Negligence Principles to a Proceeding Before the Workers’ Compensation Appeals Board in Which an Employer Claims a Credit Against His Liability for Compensation in the Amount of an Injured Employee’s Settlement Recovery From a Third Party Prevents the Proceeding From Accomplishing Substantial Justice Expeditiously and Inexpensively and Without Incumbrance of Any Character in Violation of Article XIV, Section 4 of the California Constitution
In addition to making the injured employee’s recovery of compensation benefits dependent, in part, upon the fault of the employer, the majority’s modification of Roe constitutes an unwarranted violation of the provisions of article XIV, section 4, of the California Constitution. These provisions state, in pertinent part, that the administration of the system by the administrative body charged with the responsibility—the Workers’ Compensation Appeals Board—“shall accomplish substantial justice in all cases expeditiously, inexpensively, and without incumbrance of any character” (ibid; italics added); and that the foregoing, among other matters, “are expressly declared to be the social public policy of this State, binding upon all departments of the State government.” (Ibid.)
The majority’s holding requires the workers’ compensation judges and the Board to function as a civil court administering difficult principles of tort law. Thus, the issues of total damages suffered by an employee, including an evaluation of the worth of pain and suffering, of the conduct of the third party—whether it constituted negligent conduct or that of a manufacturer of a defective product, of the conduct of the employer— whether it was negligent conduct or not, of the conduct of the employee—whether negligent or not, of the comparative fault or negligence of each of these parties to constitute 100 percent of fault for the employee’s injury, are all issues dealt with in the civil courts but not involved at all in normal proceedings of the workers’ compensation system.
The determination of these issues generally requires extensive examination and cross-examination of a number of witnesses, both lay and expert, including expert witnesses such as engineers and accident reconstruction experts. If the determination of comparative fault involves [861]a negligent employer and a third party whose liability is predicated on the manufacture of a defective product, the percentage of fault assessed against each of these parties can only be based upon pure speculation, conjecture and guess work by the trier of fact.
It is utterly unrealistic and impractical thinking to expect the workers’ compensation judges and the Workers’ Compensation Appeals Board to handle these new issues either expeditiously, inexpensively or without incumbrance as required by the California Constitution. On the contrary, I consider it abundantly clear that these issues, required to be handled by the workers’ compensation judges and the Board as a result of the majority’s modification of Roe, can only be handled nonexpeditiously and expensively—contrary to the requirements of article XIV, section 4, of the California Constitution. Nor can the Board be expected to accomplish “substantial justice in all cases” as required by the provisions of article XIV, section 4, of the California Constitution.
I am convinced that substantial injustice in many cases will necessarily result to the injured employee from the majority’s modification of the Roe doctrine of no credit allowance to a negligent employer. As Justice Clark remarked in his concurring opinion in Safeway Stores: “Blind inquiry into relative fault is no better than the flip of a coin, and disputes over degree of fault must greatly increase the time and cost of litigation. [¶] While the comparative fault doctrine continues irresistible in the abstract, implementing the new doctrine requires both great administrative expense and analytical and mathematical determination for which the judicial system is not equipped.” (Safeway Stores, supra, 21 Cal.3d 322, 335.) (Italics added.) These consequences stated by Justice Clark apply with even greater certainty and inevitability to the injection of comparative principles of fault into the administrative system of workers’ compensation.
The principles underlying the workers’ compensation system and those underlying the tort negligence or fault system are so completely different and dissimilar from both a qualitative and a quantitative standpoint that any attempt, such as that made by the majority in the case at bench, to fuse the two into an integrated whole can only do violence, inequity and injustice to the special considerations of the workers’ compensation system. As between employee, and employer in proceedings before the Board, questions involving issues of comparative negligence or fault and issues of the extent and monetary value of pain and emotional trauma [862]suffered by the injured employee are obviously repugnant and antithetical to the undergirding principles of workers’ compensation law.
The central theme of the workers’ compensation law is that the worker who is injured during the course of his employment shall receive all medical care needed as a result of his injury and a modest but not a full recompense for his lost earnings and his loss of earning capacity. These benefits are the only benefits made available to the employee from his employer because of the premise that they are recoverable regardless of the fact that the employee’s negligence might even be the sole proximate cause of his injury. These benefits constitute the maximum liability of the employer irrespective of the proximate cause or causes of the injury and irrespective of the amount of pain and emotional trauma suffered by the employee as a result of his injury. The workers’ compensation judges and the Board are trained and geared to conduct hearings and make the necessary determinations in the disputes between an employee and his employer regarding these very limited issues.
In the case before us, however, the majority is willing to risk, in the absence of any compelling necessity therefor, undermining the carefully developed principles and policies that support the constitutional and legislative enactments creating the workers’ compensation system. The majority is willing to take this risk in the pursuit of an illusory, theoretical, and impractical goal of assuring that, when a third party and an employer are both responsible for an employee’s injury and damages, neither the employer nor the third party should ever end up being responsible for a greater portion of the employee’s damages than is established by the respective percentages of fault. This view of the majority represents an unexplainable solicitude for the interests of the employer and third party rather than a solicitude for the injured employee.
It is of significance that, in the case at bench, we are not really talking about the rights and obligations between an employer and third party directly. On the contrary, we are deciding the rights and obligations between an employer’s insurance carrier and a third party’s insurance carrier. Each insurance company has been paid premiums for undertaking the risks involved. It is neither the employer nor the third party who suffers by virtue of any shifting between the insurance carriers of the responsibility for specified percentages of the damages suffered by the injured employee. Most employers are business entities. The cost of insurance premiums is a cost of doing business which is passed on to the [863]customers of the business. Most third party tortfeasors are also business entities in which the cost of insurance premiums represent part of the cost of doing business that is paid for by the customers of these entities. Thus, the amount of damages to the injured employee that is paid by the insurance carriers for the employee and the third party is in reality financed by the customers of the employer and the third party. The costs of the awards to injured workers are spread, therefore, among a substantial segment of society.
The principle here involved is similar to that expressed by this court in Greenman v. Yuba Power Products, Inc. (1963) 59 Cal.2d 57, 63 [27 Cal.Rptr. 697, 377 P.2d 897, 13 A.L.R.3d 1049], in imposing upon a manufacturer liability without negligence for injuries resulting from a defective product: “The purpose of such liability is to insure that the costs of injuries resulting from defective products are borne by the manufacturers that put such products on the market rather than by the injured persons who are powerless to protect themselves.” The fact that Daly v. General Motors Corp. (1978) 20 Cal.3d 725 [144 Cal.Rptr. 380, 575 P.2d 1162]; American Motorcycle Assn. v. Superior Court (1978) 20 Cal.3d 578 [146 Cal.Rptr. 182, 578 P.2d 899], and Safeway Stores, Inc. v. Nest-Kart (1978) 21 Cal.3d 322 [146 Cal.Rptr. 550, 579 P.2d 441], have been deemed by a majority of this court as a. logical extension of the Li principles of comparative negligence does not at all lead reasonably to the conclusion that the case before us also represents such a logical extension.
As I have explained above, the laudable but impractical and illusory goal of the majority to require the sharing of liability between employers and third parties according to the principle of comparative degrees of fault will, in the instant case, result in injustice, increased costs of administration and litigation, and in the nonexpeditious and expensive disposition of cases before the Workers’ Compensation Appeals Board —undesirable results which are constitutionally interdicted and which clearly outweigh any possible beneficial effects sought by the majority.
In Roe, this court expressed the principle that “[t]he injured workman is the prime object of constitutional solicitude” (Roe, supra, 12 Cal.3d 884, 891), in criticizing the concept expressed in a literal adherence to Labor Code section 3861 which would grant a negligent employer an automatic credit for the full damage recovery secured by an employee against a third party. To carry out this principle of constitutional solicitude for the injured workman, the Roe court precluded a negligent employer from obtaining against his liability for future permanent [864]disability benefits to the injured employee, any credit in the amount recovered by the employee against a third party. But, in modifying Roe to grant a negligent employer a partial credit in the employee’s third party recovery, the majority in the case at bench has unfortunately forsaken and repudiated this principle, so nobly expressed in Roe.
I would deny the petition for writ of review and affirm the award.
Bird, C. J., and Tobriner, J., concurred.
Assigned by the Chairperson of the Judicial Council.