S&W Penalties: What Employer Misconduct Rises to the Level of Serious and Willful?

When an employee’s industrial injury is caused by the serious and willful misconduct of the employer, Labor Code section 4553 allows for the employee’s compensation to be increased by one-half upon a petition for penalties to the Workers Compensation Appeals Board.  The California Supreme Court has determined that the one-half increase applies to every benefit or payment provided to the applicant under Division Four of the Labor Code, including medical treatment payments, medical-legal fees, vocational rehabilitation costs, and all indemnity benefit payments.  As the penalty is due to quasi-criminal conduct, Workers’ Compensation insurance does not cover employer serious and willful misconduct; and the penalty is assessed directly against the employer.

Serious and willful misconduct petitions claim injury through either the employer or his managing representative, or general superintendent’s violation of a Cal/OSHA safety order, or the failure of the employer to provide a safe working environment under Labor Code section 6400.  Safety Orders are contained within Division 5 of the Labor Code.  Should the injured worker believe that the employer committed serious and willful misconduct, he must file his petition within one year of the date of injury.

To prove an employer’s violation of a safety order, the injured worker must show  (1) the specific manner how the order was violated; (2) how the violation proximately caused the injury to the applicant; and (3) either – the safety order and the conditions of its violation were actually known and violated by a specific individual; - or where the condition making the safety order applicable was obvious to the employer or his representative as designated under Labor Code section 4553, and the failure of that individual to correct the problem constituted reckless disregard for the consequences. 

Labor Code section 6400 requires every employer to furnish employment and a place of employment that is safe and healthful for its employees.  Labor Code section 6400.  To prove employer serious and willful misconduct for an unsafe environment, an injured employee must prove that the employer (1) knew of the dangerous condition; (2) knew that the probable consequences of the condition would involve serious injury to an employee; and (3) deliberately failed to take action.

For a single instance of serious misconduct, the injured worker must show with reasonable particularity that the reckless disregard for safety was made by a person in the managerial class of the employer.  Where obvious, fixed, and long-maintained conditions of hazard exist, the courts have inferred that the conditions were known to members of the managerial class, and can be proved by circumstantial evidence, including evidence of prior injuries arising from similar circumstances.

Courts have required egregious conduct by the employer to be considered serious and willful misconduct.  Serious and willful misconduct involves conduct of a quasi-criminal standard, and are acts that are either likely to result in serious injury, or with a wanton and reckless disregard of their possible consequences.  The misconduct requires an intention to do harm, making it the antithesis of negligence of any degree.  A willful failure to protect an employee from likely injury has been found sufficient to meet the standard.  This standard is applicable both in violations of the Safety Orders as well as a violation of Labor Code section 6400.

Under Labor Code section 4551, an injured worker can be penalized, upon petition by the employer, for his own serious and willful misconduct which caused injury.  If the employer proves that the employee’s own misconduct caused his injury, the otherwise recoverable compensation may be reduced by up to one half upon a findings and award by the Workers’ Compensation Appeals Board. 

Plaintiff – Employment Discrimination Practice

On September 20, 2017, the Federal District Court for the Eastern District of California ruled in favor of an employment discrimination plaintiff represented by Mastagni Holstedt, APC, denying the defendants’ Motion for Summary Judgment. Mastagni Holstedt, APC represents a Butte County Sheriff’s Deputy, Michael Sears, in this federal Racial Discrimination and Harassment lawsuit against the Butte County Sheriff’s Office and a number of individual employees of the Sheriff’s Office. 

In the lawsuit, Deputy Sears – who is African American – asserts that members of the Butte County Sheriff’s Office engaged in derogatory and hateful speech because of race, including use of the word the “N-word” and terms such as “Canadian Blue Gum.”  Mr. Sears charges that a black and white plastic panda figurine was hanged in a Sheriff’s facility and Mr. Sears was told that “the hanging doll symbolized Mr. Sears because Mr. Sears is half-Black and half-White.”  Mr. Sears charges that he was denied promotional opportunities and other job benefits.  Taking evidence of these allegations into consideration – along with evidence of many more instances of racially discriminatory conduct – the Federal Court reasoned that “Plaintiff has offered sufficient evidence in the current posture to show that he was subject to discriminatory and harassing conduct and there are numerous triable issues of fact as to whether Defendants’ proffered reasons for their actions were legitimate or pretextual.” 

In so ruling, the federal court refused to deny Mr. Sears his day in court before a jury. The case now proceeds in litigation toward trial. 

Cumulative Injury: Can I Still File My Claim After Termination?

What is a Cumulative Trauma Injury?

A cumulative trauma injury is an injury that is caused by repeated events or repeated exposures at work. For example, hurting your wrist by doing the same motion over and over, or losing your hearing because of constant loud noise.

Post-Termination Cumulative Trauma Injury Claims

Generally, an employee cannot file a claim after termination, even if the injury occurred prior to notice of the termination. However, there are multiple exceptions to this general rule. 

In cases of cumulative trauma injuries, Labor Code section 3600(a)(10)(D) provides an exception to this general rule. To qualify for this exception, the employee must show that the date of injury occurred after termination or layoff. The date of injury is defined by Labor Code section 5412 to occur when the employee (1) first suffers disability from the injury, AND (2) knows or should have known that the disability was caused by the employment. This exception applies where an employee suffers a work-related cumulative trauma injury, but only discovers that the injury is work-related after being fired. 

In recently applying Labor Code section 3600(a)(10)(D), the court of appeal held in County of Riverside v. Worker’s Comp. Appeals Bd. (2017) 10 Cal.App.5th 119, that a former Deputy Sheriff did not know, and could not have reasonably known, that the cumulative trauma injuries he suffered were industrially caused until his doctor told him that his symptoms were industrially related, and therefore the statute of limitations for workers’ compensation claim did not begin to run until that time. Also, in City of Fresno v. Workers’ Comp. Appeals. Bd. (1985) 163 Cal.App.3d 467, despite the employee's expression of belief that his employment caused his injury, the court of appeal held that the applicant could not have reasonably known that his injury was work-related because he did not have expert training or qualifications to recognize the relationship between the known adverse factors involved in his employment and his injury. Thus, the court held that the applicant’s one-year limitation period to file a claim began with the city’s denial of benefits letter, and the applicant’s claim, filed within a year of the letter, was timely.

IBEW Local 1245 Publishes Article on King v. CompPartners, Inc.

IBEW Local 1245 published an article by Mastagni Holstedt associate attorney Gerald Latasa about King v. ComPartners.  In King v. CompPartners, the Court of Appeal held that doctors reviewing treatment requests on behalf of insurance companies in workers’ compensation cases may now be held civilly liable if their recommendations fall below the standard of care required of doctors.  Read more about the case on Local 1245's blog here.

Mastagni Holstedt attorney Jeffrey Edwards presenting on LGBT Issues in the Workplace

Mastagni Holstedt attorney Jeffrey R. A. Edwards is presenting on LGBT Issues in the Workplace on Wednesday, December 9, 2015 at Noon at the Dante Club, 2330 Fair Oaks Blvd, Sacramento.

Workers' Compensation Destination

For over 40 years the law firm of Mastagni Holstedt, APC has been the destination to resolve Workers’ Compensation claims in California.

Being one of the largest law firms in California with over 45 attorneys firm wide, including 15 Workers’ Compensation attorneys and over 10 support staff members within the department, Mastagni Holstedt, APC is ready to answer your tough questions and resolve your claim in a timely and professional manner.

With locations throughout California and our central location in the Capital City of Sacramento, Mastagni Holstedt, APC is known for answering legal questions from individuals around the state.

This firm represents the rights of citizens in any profession, such as Police Officers, Firefighters, public employees, and private sector employees. This family owned and run business handles a wide range of different Workers’ Compensation injuries. Dealing with an injury and resolving any claim on your own can be a daunting task, having Mastagni Holstedt, APC on your side can make the process less stressful and you will not feel overwhelmed in the complicated legal system. 

To answer any of your Workers’ Compensation questions, contact Mastagni Holstedt APC throughout the state 27/4 Toll Free Line 800-852-7581 

In Northern California, Monday through Friday 8AM-5PM at 916-446-4692
Fax: 916-447-4614.
1912 I Street, Sacramento, CA 95811.

In Southern California Monday through Friday 8AM-5PM at 909-476-3560.
3400 Inland Empire Blvd, #101
Ontario, CA 91764

Supreme Court Rules Regular Sworn Peace Officers Are Not Entitled to Same Disability Benefits as Volunteer Peace Officers

Sworn peace officers who are regular employees of a law enforcement agency are not entitled to the same disability benefits as volunteer peace officers, according to the Supreme Court’s latest decision.

On October 26th, the California Supreme Court decided the case of Larkin v. Workers’ Compensation Appeals Board. The Supreme Court ruled that Labor Code section 4458.2 does not apply to sworn peace officers who are regular, salaried employees of a law enforcement agency.

Under Labor Code section 4458.2 an officer’s temporary disability (or “TD”) benefit is set at the maximum statutory rate instead of being based on what they were actually earning. This means that if an officer was serving as a volunteer or reserve officer when they were injured on duty, they would receive TD benefits as if they were full-time employees of the agency. And the officer would receive TD benefits at the highest possible rate even if they were actually paid less while they were working.

This makes a huge difference in the amount an officer is paid for an on-the-job injury. Normally, an employee’s TD benefit payment is only two-thirds (2/3) of their regular salary. But under Section 4458.2 an officer would receive the maximum statutory rate of TD, as if they were among the highest paid employees.

To put this in real terms, in 2008 Police Officer John Larkin was seriously injured in a vehicle accident while on duty. His average weekly salary at that time was around $1000. The City of Marysville said it would only pay Larkin TD at two-thirds of his salary, meaning around $670 per week. But if Section 4458.2 was applied and Larkin was paid TD at the maximum statutory rate, he would receive over $900 per week in TD benefits. That is a difference of more than $10,000 over a year.

Officer Larkin filed a claim for TD benefits under Section 4458.2. But the Workers’ Compensation Appeals Board ruled for the City of Marysville and denied his claim. The Court of Appeal then ruled against his appeal. With attorneys Brian Dixon and Gregory Gomez from the Law Offices of Mastagni Holstedt, A.P.C. representing him, he took his case all the way to the California Supreme Court.

Unfortunately, the Supreme Court sided with the City of Marysville and ruled that Section 4458.2 did not apply to Officer Larkin. The Court largely deferred to the Workers’ Compensation Appeals Board, although it did offer some of its own reasons for the ruling.

The Supreme Court’s main justification was that Section 4458.2 was originally written to provide disability coverage to volunteer peace officers. Officer Larkin’s attorneys pointed out that the word “volunteer” was removed from the law in 1989 and is not in the other law it references (Labor Code section 3362). But the Court said that when the State Legislature made these amendments it did not mean to broaden the law to apply to all peace officers. To back this up the Court pointed to certain historical legislative documents and ignored others that did not support its ruling.

Another reason the Supreme Court gave was that regular peace officer employees are covered under Labor Code sections 4850 and 4853. These laws allow an injured officer to take up to one year of full-paid leave and then up to one year of TD benefits at the normal two-thirds rate. The Court argued that it was “balancing” the interests of regular and volunteer peace officers by denying regular officers Section 4458.2 benefits.

The Court ignored the reality facing many peace officers in smaller cities and rural counties. Officers like Larkin choose to serve in dangerous positions for less pay than their colleagues in wealthier cities and counties. They should not be punished when they suffer an on-the-job injury. But now, not only will officers like Larkin get less in TD benefits than many regular peace officers. They cannot even get the same TD benefits that volunteer peace officers receive. This ruling affects the rights of more than 73,000 police and sheriff patrol officers across the state. (Employment Development Department, Police and Sheriff Patrol Officers in California.)

On behalf of the thousands of peace officers hurt by this inequity, Mastagni Holstedt, A.P.C. hopes the Legislature immediately fixes the law and overturns the Supreme Court’s ruling.