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.
