Serious and Willful Misconduct

[chrischris]

Can we talk about this issue of S&W Misconduct?

Can you cite some cases in California?

Does S&W Misconduct always have to result in a physical injury or can / has it been proven from past caselaw that it can result in a psychological injury?

Not interested in discussing 132a. (WC discrimination)

Thanks 1171, and anyone else who can help me.

[jayne]

CC with my case my work was self insured and denied me what the court decided was reasonable treatment in a timely manner.....they were fined a goodly amount which was given to me as an award.....while it was welcome I would rather have had the timely treatment

[1171]

S&W is additional benefit to a comp claim and therefore requires any compensible claim (CT, specific, physical, psychological, or combination) in order to be awarded.
I can't site any specific cases from memory but there are hundreds in the legal & case law resources/references.

[Bad Boy Bad Boy]

Serious and Willful Misconduct

The statute of limitations pertaining to serious and willful misconduct is one year from the date of the act or omission in question, causing the injury.
If the employer commits an act or omission that is so wanton or egregious as to almost assuredly cause the injury of the worker, the employer may be held liable for what is called serious and willful misconduct. This requires a showing on the part of the worker of more than employer negligence or even gross negligence. If successful, the award is ordered directly against the employer, and not against the insurance company. It entitles the worker up to a 50% increase in workers’ compensation benefits and up to a $10,000 penalty. Claims of serious and willful misconduct are very difficult to prove and are resisted vigorously by employers.

http://www.lexisnexis.com/Community/work...-2010.aspx

http://www.dir.ca.gov/dwc/iwguides/IWGuide08.pdf

[Bad Boy Bad Boy]

Ferguson v. Workers" Comp. Appeals Bd. (1995) 33 Cal. App.4th 1613, 1622 citing Mercer-Frazer Co. v. Industrial Acc. Com. (1953) 40 Cal.2d 102, 120

Johns-Manville Sales Corp. v. Worker Comp. Appeals Bd. (1979) 96 Cal.App.3d 923

An employee can also support a finding of serious and willful misconduct based upon violation of Cal/OSHA regulations, also known as safety orders. All Cal/OSHA safety orders are contained in Title 8, California Code of Regulations, Division 1, Chapter 4 Industrial Safety Orders, sections 450 through 8618.

Labor Code section 4553.1 provides that an employee can prove serious and willful liability based upon a violation of a safety order if he/she can prove all of the following:

1. The specific manner in which the order was violated.

2. That the violation of the safety order proximately caused the employee's injury or death.

3. That the safety order, and its applicability, were known to, and violated by, a particular named person, who can either be the employer, a partner, or a managing representative (e.g., a supervisor or a foreman).

This third element can also be shown by establishing that the condition was obvious, created a probability of serious injury, and the failure of the employer or its representative to correct the condition constituted a reckless disregard for the probable consequences.

Because the definition of serious and willful misconduct as used by the Workers' Compensation Appeals Board is very similar to that used by the Cal/OSHA Appeals Board, the employee may seek to introduce evidence of a final Cal/OSHA citation as proof of the elements of serious and willful liability. Thus, any settlement of a Cal/OSHA serious and willful violation must include a non-admissions clause.

The court noted that the increased compensation might also constitute a "penalty." However, the court found that the increased award does not amount to punitive damages because it does not necessarily provide the injured worker more than would compensate him or her. This is because workers' compensation benefits generally do not fully compensate the employee for his or her injuries. Thus, section 4533 only provides "full or more nearly full compensation." Id. at 1622. The court in Ferguson held that the amount of the increase for a serious and willful violation cannot be allowed to provide the injured worker more than is necessary to fully compensate the worker. Id. at 1623-1625.

http://www.workcompacademy.com/cwccb/ind...40_7_9.htm

[chrischris]

BBBB, Thank you for taking the time to send me all these links. They have very valuable information. I have seen a few, but not all of these. It took a lot of time for you to do this and I really appreciate it!

I believe the 12-month time limit answers my question as to whether this will become part of WC claim, or which I now know, I will need to contact a good labor law lawyer to talk with.

Live and learn. Should have filed this long ago, but didn't and now the entire situation has taken a turn.

Thanks again for those that answered.

[1171]

haven't used that reference before.
good find boy.

[Bad Boy Bad Boy]

1171 Which one, so I know....

[1171]

Bad Boy Bad Boy Wrote:1171 Which one, so I know....

referring to the link
http://www.workcompacademy.com/

most of my references are not freely available online and are of limited use in the forum.

[Bad Boy Bad Boy]

1171, well then I hope you too can make good use of it then. As you would use a CA site more them me, on any given day....