This analysis does not take into consideration that economic damages are not reduced by employer negligence pursuant to Prop 51. The 25% employer negligence only affects the non-economic damages. So, if $50,000.00 of the damages is economic loss and $50,000.00 is non-economic loss, then the credit threshold would be $12,500.00 - the amount of the civil recovery lost due to the employer's negligence. It is very important that defense attorneys recognize this distinction. The entire civil award or settlement is not reduced proportionate to the percentage of employer negligence unless the damages are entirely non-economic, which is rarely the case.
Does anyone know of any case law in workers' comp on this point directly, ie calculating the credit in this instance?