Defending a Serious and Willful Claim

When an employee sustains a work-related injury, an employer may very well be on the hook for the costs of medical care for the injury through the workers’ compensation system.  The workers’ compensation system is designed as “no fault” system, meaning that in order to receive compensation for the injury, the employee does not have to make any demonstration that the injury was somehow the fault of the employer.  In some limited situations, an employee may make an additional claim under the “Serious and Willful Misconduct” provisions of California Labor Code § 4553.  This code states that if an employer is   found to have caused an employee’s injury through “serious and willful misconduct” they will be ordered to pay an amount that is equal to half the value of all the benefits paid to the employee as a result of the injury.  Clearly, this can amount to a large amount of money.  Moreover, an employer cannot insure against serious and willful claim.  Accordingly, it is important that employers have a firm understanding of how to defend against such a claim.

The most obvious way is to make every effort to make sure that such a claim is never made at all.  An employer can take these steps by being vigilant about the condition of the work place.  Repairs and renovations necessary to keep a worker safe should be promptly made.  Employee complaints about safe working conditions should be reasonably heeded, and an employer should make repairs to working conditions when necessary.

That aside, an employee must prove that an employer failed to act, even though the employer had knowledge that a serious injury would probably result in order to prevail on such a claim.  Therefore, to defend against a “serious and willful” claim, a defense may focus on several areas.  An employee must demonstrate that an employer knew that the danger existed.  A good defense to this will for an employer to be meticulous about documenting each and every report from any employee complaining about a working safety condition.  If no employee every made a complaint about the condition that caused the injury, it could be difficult to prove that an employer knew of the risk.  Another way to defend against such a claim is to document the steps that the employer took in order to improve the risk of injury.  If an employer had taken steps to make sure that no injury would occur, this will provide an excellent defense, as an employee needs to prove a failure to act, not a failure to act appropriately.

Serious and willful claims are serious, and you need an experienced attorney to help you navigate these claims.  We can review your business together to help you with any claim your business is facing.  Contact us today at (714) 516-8188 if you have questions about Serious and Willful Misconduct Defense.

“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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