“Serious and Willful”

When an employee makes a workers’ compensation claim, typically all or he she needs to prove is that he or she was injured and that injury was, in fact, sustained at work. Once the employee provides this proof, a claim is typically approved. The majority of disputes in workers’ compensation cases are not over whether an injury occurred, but rather the degree of the injury and the degree of the disability. Once that is settled, an employee will typically receive at least some degree of compensation. The employee’s burden of proof is quite low. He or she does not need to prove that the injury was the employer’s fault, but only that the injury happened and it was a work-related injury.

A claim for additional compensation under Labor Code 4553 is a different type of case. In those cases, an employee is making the claim that he or she is entitled to compensation over and above the regular workers’ compensation avenues because of the employer’s serious and willful misconduct. To prove this type of claim, an employee must prove that an employer knew of the danger but did nothing to correct it. The failure must be more than just negligent behavior. An employer must have essentially understood the fact that injury was likely to result from an employer’s failure to act but nevertheless failed to take remedial measures.

Serious and willful misconduct cases are serious for employers. Workers’ compensation does not cover these types of claims, and in fact the statute specifically provides these injuries are not insurable at all. The labor code provides that if an employer is found to have caused an employee’s work-related injury through its “serious and willful” misconduct, the employer must pay an amount equal to half the value of all benefits paid as a result of the injury. These benefits include all disability, both temporary and permanent, as well as medical and vocational rehabilitation benefits. A workers’ compensation judge has no discretion in adjusting the amount of the award, and the employer must pay the full amount of damages if the employee meets his or burden of proof. As these injuries are uninsurable, an employer must pay any recovery from the employer’s own funds.

 Serious and willful claims are very serious, and you need an experienced attorney to help you with these claims, both before and after they occur. Call me today at (714) 516-8188. We can talk about your business and these types of claims.

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