Workers Compensation Serious and Willful Misconduct Claims – Brought Before the Workers’ Compensation Appeals Board, but Not Covered by Your Workers Comp. Insurance (California Labor Code Section 4553)

William L. Porter Founder & President Specializing in Construction Law, Business Law and Labor Law
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General Rule

The amount of workers’ compensation that may be awarded to an injured worker may be increased if the injury was brought about by the serious and willful misconduct of the employer or the employer’s managing representative. Serious and willful misconduct is best defined as any intentional act, or failure to act, coupled with the knowledge that serious injury will be the probable result from that act or failure to act.

Damages Available

1. The employee’s workers’ compensation award may be increased by 50 percent. Although this doesn’t seem to be very substantial, the actual “award” used to determine this increase can be quite surprising in its magnitude. To determine the increase amount, all monies paid to the employee directly (indemnity benefit payments) as well as all monies paid for medical treatment, medical-legal fees, and vocational rehabilitation are totalled, then 50 percent of that total is awarded as a result of the serious and willful misconduct. (Typically a substantial award when you remember large medical bills and the cost of the injured worker’s rehabilitation.)

Note: The only limit set for this computation is that the total award given to the injured worker may not exceed what the worker might have won if he had been allowed to bring a civil tort cause of action. (Non-workers’ compensation claim.)

2. Costs and expenses of up to $250.

Ways to Avoid

1. When employees report concerns, or actual occurrence of unsafe work conditions, be sure to take immediate corrective action and document all actions taken. E.g. repair invoices, memorandum’s regarding actions taken etc…

2. Always be alert for possible unsafe working conditions, and ensure that all supervisors have training in recognizing and rectifying possible work hazards.

Insurance Coverage

Employers may not insure against their possible liability for the 50 percent additional compensation, but their workers’ compensation insurance carrier may provide insurance against the expense of defending any suit brought by an injured worker alleging the employer’s serious and willful misconduct. Check with your insurance carrier to see what your policy entails.

William L. Porter is a principal in Porter Law Group, Inc. in Sacramento, California.
He can be reached  at (916) 381-7868.

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