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Need layman's terms - mytruck - 12-18-2009

In California

I received a letter from my attorney that states they filed paperwork against my employer regarding labor laws 4553 and 5401. I looked them up and read them. Called my attorney, but he is gone for the holidays. Could I get a simple explanation as to what these are and what they mean to my treatment/settlement with WC?

Update: I finally get a date for my neck surgery on Monday. I have lived almost a year (Tuesday is the anniversary of the injury) with a fractured neck.

Thanks in advance.

RE: Need layman's terms - Bad Boy Bad Boy - 12-18-2009

4501 - Within one working day after an employee files a claim form
under Section 5401, the employer shall authorize the provision of all
treatment, consistent with Section 5307.27 or the American College
of Occupational and Environmental Medicine's Occupational Medicine
Practice Guidelines, for the alleged injury and shall continue to
provide the treatment until the date that liability for the claim is
accepted or rejected. Until the date the claim is accepted or
rejected, liability for medical treatment shall be limited to ten
thousand dollars ($10,000).

4553 - Under California Labor Code ยง 4553, an employer that is found to have caused an employee's injury by its "serious and willful misconduct" will be ordered to pay an amount equal to half the value of all benefits paid as a result of the injury. This includes all temporary and permanent disability, medical and vocational rehabilitation benefits.

Although the California Supreme Court has characterized awards for serious and willful misconduct as an additional "benefit", the statute provides that this liability, like criminal fines and Cal/OSHA penalties, is uninsurable. An S&W award must be paid from the employer's own funds. The employer cannot shift this liability to an insurance company or a third party, by contract or otherwise.

Moreover, unlike the power vested in judges and juries to decide the value of damages in personal injury negligence actions, Labor Code section 4553 denies the workers' compensation judge any discretion to adjust the amount of the award: Either there is no S&W liability, in which case the employer pays nothing, or there is, in which case the employer pays the full amount.

See "Settlement of S&W Claims" below for further discussion of the dynamics which these rules create when developing a litigation plan.

The Employee's Burden of Proof under Section 4553
No citable decisions have parsed the meanings of "serious" and "willful" individually. Indeed, the phrase might as well be spelled "seriousandwillful." And neither the California Workers' Compensation Appeals Board (WCAB) nor the appellate courts have discussed what constitutes "serious" misconduct in any detail. Instead, the focus of the Board's and the courts' attention has been on what constitutes "willful" misconduct by the employer.

To recover under section 4553 the employee must demonstrate that the employer's conduct was "willful"; that is, that the employer actually knew of the dangerous condition, yet deliberately failed to take corrective action. This requirement has been interpreted by the courts to mean conduct which is something more than even gross negligence. It has been said to be conduct of a quasi-criminal nature . The California Supreme Court has said that an employer commits willful misconduct "...when he 'turns his mind' to the fact that injury to his employees will probably result from his acts or omissions, but he nevertheless fails to take appropriate precautions for their safety."

An easier way to prove an S&W claim is to prove either:

that the employer failed to act even though it had information or knowledge that a serious injury would probably result, or

RE: Need layman's terms - 1171 - 12-19-2009

What don't you understand about $10K of medical care while claim remains undenied or extra benefits if judge believes there was serious and wilful misconduct by the employer that led to the injury?

RE: Need layman's terms - mytruck - 12-19-2009

1171 Wrote:What don't you understand about $10K of medical care while claim remains undenied or extra benefits if judge believes there was serious and wilful misconduct by the employer that led to the injury?

The claim has not been denied. I do understand after the previous post and what I read about the extra benefits. This is the first I have heard of anything that was directed at my employer for serious and willful misconduct. Was kind of unprepared/surprised getting this in the mail. With my attorney out, I'd thought I could get a simple explanation from the forum as to the effect this may have.

RE: Need layman's terms - Sunshine7 - 12-20-2009

I talked to my attorneys office on Thursday, I let them know my kitchen manager asked me to hang a Easter poster in the display case, he asked me if i had ever done that I told him no, my kitchen manager opened the right side of the door for me and told me to be careful because the door was broken and it could only open so far, when i was hanging up the poster the right side door came down on my right foot, my attorneys office said for me not to worry about it that it was only peanuts, I went to a mental exam yesturday, the syc. told me he was going to request medical and cash, I also went to a foot specialist today, saturday and he said within 5 minutes i have CRPS. He said he was going to request medical and cash. Live in California

RE: Need layman's terms - 1171 - 12-20-2009

I think you must have posted incorrectly.
your post has nothing to do with 4453 or 4501 labor codes or how they can be interpreted.
what is it you're are trying to do 7?