Serious and Willful

With very few exceptions, an employee cannot sue their employer for an injury in the workplace.  Basically, the legislature gave up an employee’s right to sue for negligence but, in return, allows an employee to recover workers’ compensation benefits without having to prove the employer was at fault. However, what happens with an employer’s conduct is so egregious and goes beyond mere negligence? That is where a claim for penalties based on the theory of serious and willful misconduct might apply. In this article, our Sacramento Workers’ Compensation Attorneys will be discussing the most common topics around serious and willful claims. In particular, we will cover the type of misconduct that is considered.

CA WC Case Serious And Willful
What type of misconduct is considered serious and willful? 

There is a tremendous amount of litigation and case law around the interpretation of what conduct amounts to serious and willful misconduct, and it would be impossible to fully explain in a short article like this. However, there are a few basic concepts that help define what it is and what it is not.  

Serious and willful misconduct is more than negligence and is even more than gross negligence. It almost reaches the level of intentionality. To prove serious and willful misconduct, you usually must establish the employer had actual knowledge of a dangerous condition in the workplace. It is a tougher standard than negligence, which does not require actual knowledge, but generally allows that the employer “should have known” of the dangerous condition. Consequently, to prevail, you must generally show a policy and procedure that creates and harbors dangerous conditions or show the conduct that created the dangerous condition was created by a superior in the employment chain.

In addition to showing actual knowledge of the dangerous condition, you must generally establish that the employer knew that the probable consequences of the dangerous condition would likely involve serious injury to the employee. In other words, someone would be injured from those consequences and would probably have a serious injury, not a small one. 

Finally, not only must you show that that the employer had knowledge of the dangerous condition and had knowledge that a serious injury would probably result, but that they had time to take action and failed to take action. 

What is the burden of proof and procedure to prove serious and willful misconduct?

If you believe you have been injured as the result of serious and willful misconduct of your employer, then you and a Sacramento Workers' Compensation Attorney need to file a formal petition with the California Workers' Compensation Appeals Board. You will have the opportunity to conduct discovery, including taking depositions of all relevant parties, and then have the matter set for a trial before a Workers' Compensation Appeals Board Judge. At the trial, the employee has the burden of proving by a preponderance of the evidence that their employer's actions were the proximate cause of your injuries. 

What is the statute of limitations to file a serious and willful petition?

The time period to file a serious and willful claim is very strict, and if you do not file a formal petition within the time period, your rights to added penalties are generally lost forever.  Under the Labor Code, you must file a petition for penalties within one year from the date of injury.  There are very few reasons that the time period may be tolled or extended. It is essential to take every effort to file well in advance of the one year period or to seek the assistance of a Sacramento Workers' Compensation Attorney well in advance to see if a claim is viable.

What is the penalty or amount an employee can receive if they prove serious and willful misconduct?

Unlike a personal injury case, when you prevail on a claim for serious and willful misconduct, you still are not awarded general damages for things like pain and suffering or loss of future income and earnings.  Instead, you receive a statutory penalty. The penalty, however, can be quite significant, as it is 50 percent of all benefits paid in your case.  In other words, you add together all of the medical treatment payments, medical-legal fees, temporary disability payments, permanent disability payments, and vocational rehabilitation costs, and then divide by two. That is generally the amount of penalties that you can recover in a serious and willful case.

In this article, we wanted to give you a primer on serious and willful claims. If you think you may be entitled to penalties for a serious and willful injury, we hope you will consider contacting one of the Sacramento Workers’ Compensation Attorneys in our office for a free consultation.