What if the employer was responsible for a work injury?
When an injury occurs because of the employer’s serious and willful misconduct, the worker is entitled to a significant amount of additional compensation from workers’ comp.
Generally speaking, workers’ compensation is a type of “no-fault” insurance. For the most part, it doesn’t matter if a workplace injury happened because someone was negligent, whether it be the employer, a co-worker, or even the injured employee himself or herself. Workers’ compensation is also the exclusive remedy for an injured worker. Even if the employer’s negligence caused the accident, the employee cannot sue the employer for negligence but must instead be satisfied with filing a claim for workers’ compensation benefits.
One exception does exist for accidents caused by the employer’s “serious and willful” misconduct. In this case, California workers’ compensation law increases the amount of the employee’s award by one-half what it otherwise would have been and further allows the employee to collect up to $250 in costs and expenses. For example, an employee’s $30,000 would be increased by $15,000 to a total of $45,000.
When is misconduct serious and willful?
The workers’ compensation statute does not define what actions might be considered serious and willful misconduct. It must be something beyond mere negligence or carelessness in regard to worker safety. California courts have held serious and willful misconduct to mean the employer did something the employer knew was likely to result in serious injury to a worker or did something in wanton and reckless disregard of the possible consequences.
Every situation depends on the specific facts of the case, but the following situations might be examples of serious and willful misconduct that would qualify the employee to receive additional compensation:
- Employer removes a safety guard from a piece of machinery or equipment to speed up production
- Employer sends worker into a dangerous area the employer knows is dangerously unsafe
- Employer provides a piece of equipment known to be faulty, such as a broken ladder
- Supervisor assaults a subordinate
The law specifically mentions an employer knowingly removing or failing to install a point of operation on a power press. When an employer violates this particular section of the law (California Labor Code section 4558), the employee is actually authorized to sue the employer for damages caused by the employer’s violation of the law.
Safety order violations might count as serious and willful misconduct
The California Division of Occupational Safety and Health, known as DOSH or Cal/OSHA, issues safety orders for employers to keep workplaces safe. Violation of a safety order might amount to serious and willful misconduct if the Workers’ Compensation Appeals Board (WCAB) specifically finds all of the following:
- The specific manner in which the order was violated
- The violation of the safety order did proximately cause the injury or death, and the specific manner in which the violation constituted the proximate cause
- The safety order and the conditions making the safety order applicable were known to and violated by a particular named person who was either the employer or a designated representative, or the condition making the safety order applicable was obvious, created a probability of serious injury, and failure to correct the condition constituted a reckless disregard for the probable consequences.
Proving an employer’s serious and willful misconduct can substantially increase the employee’s workers’ compensation award, but proving the case can be challenging, and you can expect the employer and their workers’ comp insurance carrier to vigorously dispute the allegation of misconduct. An experienced workers’ compensation attorney can put together and present a strong case to help the injured worker get the largest workers’ comp award available.
