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Serious & Willful
With only a few exceptions, a California Workers’ Compensation Attorney cannot sue a client’s employer for general negligence in the workplace. But, a Sacramento Workers’ Compensation Attorney can file a petition for increased workers’ compensation benefits for serious and willful misconduct of your employer. Our attorneys will discuss the reasons why an employer cannot generally be sued for negligence, some exceptions, and the alternative remedy of filing a petition for serious and willful misconduct.
What is the difference between a serious and willful misconduct petition and a lawsuit?
California, like many other states, has a no-fault workers’ compensation system. In California’s workers’ compensation system, the Workers’ Compensation Appeals Board has exclusive jurisdiction of injuries arising out of and/or in the course of employment. A no-fault system can be beneficial to the employee in that it alleviates the need to prove your employer was negligent to receive compensation. On the other hand, the no-fault system can be detrimental to an employee because employees are not entitled to pain and suffering, and various types of consequential damages for their injury. For some employees, and particularly those with smaller injuries, this no-fault system is beneficial. However, our Sacramento Workers’ Compensation Attorneys often see those with catastrophic injuries left without adequate compensation.
Are there other remedies outside the California Workers’ Compensation System?
In adopting the workers’ compensation laws in California, the legislature did recognize certain types of claims that additional remedies should be allowed when someone is injured on the job. Some of the primary exceptions to the workers’ compensation system are when:
- There is a dual capacity between you and your employer that goes beyond employer/employee: For example, if you worked for Walmart, but you were off duty and shopping in the store and were injured, you may be able to sue your employer.
- Your employer fraudulently conceals your injury: For example, you were exposed to a blood-borne illness and the employer lied to you about your exposure
- Your employer physically assaults you or ratifies the assault by a co-employee
- There are certain circumstances surrounding an injury while operating a power press
- Your employer was not lawfully insured for workers’ compensation
There are also additional remedies for violations of equality laws, as well as the right to be free from unwanted comments and actions based on race, color, national origin, sex, sexual orientation, religion, and other protected classes.
How do you file a Serious and Willful Misconduct Petition?
Our Sacramento Workers Compensation Attorneys are often asked how to file a serious and willful petition. If you would like to do it on your own, the Department of Industrial Relations has a great link on the mechanics of preparation of a document cover sheet and documents separator sheet. It includes a blank caption for the petition itself as well as verification and proof of service.
While the link is helpful, problems may arise as you fill out the information. It’s like asking a dentist how to remove a tooth and trying to do it yourself. You can theoretically take a pain killer, grab a drill and pair of pliers, and go for it. But, no one would recommend it.
The real nuts and bolts of how to file a serious and willful complaint are not in the drafting of the various ancillary documents but in the formulation of the language that goes into the body of the petition. Our Sacramento Workers’ Compensation Attorneys are well versed in identifying specific facts as to the conduct that gives rise to the claim. They can identify certain binding facts and findings made by Cal/OSHA or other organizations and include the requisite allegations regarding jurisdiction, real parties in interests, and related matters.
If you think you have a claim, it is worth hiring a Sacramento Workers’ Compensation Attorney to assist. We handle these claims on a contingency basis, which means it doesn’t cost you anything until we win.
What can you do?
While most employees do not have the right to sue their employer for negligence, the legislature has room for those subject to serious and willful misconduct without a remedy. While our Sacramento Workers’ Compensation Attorneys are often asked how to file a serious and willful complaint, the mechanics are easy to answer. The better question is what information should go into a petition for serious and willful, the remedies available, an exception to get into superior court, and how to prepare a case for resolution or trial. Our Sacramento Workers’ Compensation Attorneys are here to assist you will all of those questions if you suffered a significant injury on the job and you think your employer’s conduct was serious and willful.