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SERIOUS & WILLFUL MISCONDUCT

Labor Code §4553 provides a remedy for the employer's serious and willful misconduct:

“The amount of compensation otherwise recoverable shall be increased one-half, together with costs and expenses not to exceed two hundred fifty dollars ($250), where the employee is injured by reason of the serious and willful misconduct of any of the following:

(a) The employer, or his managing representative.

(b) If the employer is a partnership, on the part of one of the partners or a managing representative or general superintendent thereof.

(c) If the employer is a corporation, on the part of an executive, managing officer, or general superintendent thereof.”

Labor Code §4553.1 requires specific findings:

“In order to support a holding of serious and willful misconduct by an employer based upon violation of a safety order, the appeals board must specifically find all of the following:

(1) The specific manner in which the order was violated.
(2) That the violation of the safety order did proximately cause the injury or death, and the specific manner in which the violation constituted the proximate cause.
(3) That the safety order, and the conditions making the safety order applicable, were known to, and violated by, a particular named person, either the employer, or a representative designated by Section 4553, or that the condition making the safety order applicable was obvious, created a probability of serious injury, and that the failure of the employer, or a representative designated by Section 4553, to correct the condition constituted a reckless disregard for the probable consequences.”

Labor Code §4551 provides a remedy for the employee's serious and willful misconduct:

“Where the injury is caused by the serious and willful misconduct of the injured employee, the compensation otherwise
recoverable therefor shall be reduced one-half, except:
(a) Where the injury results in death.
(b) Where the injury results in a permanent disability of 70 percent or over.
(c) Where the injury is caused by the failure of the employer tocomply with any provision of law, or any safety order of the Divisionof Occupational Safety and Health, with reference to the safety ofplaces of employment.
(d) Where the injured employee is under 16 years of age at the time of injury.”

In Mercer-Fraser Co. v. IAC (1953) 40 Cal.2d 102, the Supreme Court noted “It cannot be seriously disputed that the words “serious and wilful misconduct” must be given the same meaning in section 4551 as they have in section 4553.”

In Bekins Moving & Storage Co. v. WCAB (1980) 103 Cal. App. 3d 675, the Court noted past appellate decisions:
““Wilful misconduct” means something different from and more than negligence, however gross. The term “serious and wilful misconduct” is described . . . as being something “much more than mere negligence, or even gross or culpable negligence” and as involving “conduct of a quasi criminal nature, the intentional doing of something either with the knowledge that it is likely to result in serious injury, or with a wanton and reckless disregard of its possible consequences” . . . . The mere failure to perform a statutory duty is not, alone, wilful misconduct. It amounts only to simple negligence. To constitute “wilful misconduct” there must be actual knowledge, or that which in the law is esteemed to be the equivalent of actual knowledge, of the peril to be apprehended from the failure to act, coupled with a conscious failure to act to the end of averting injury ....”

Time to file: There is a strict statute of limitations under Labor Code §5407: “Twelve months from the date of injury. This period shall not be extended by payment of compensation, agreement therefor, or the filing of application for compensation benefits under other provisions of this division.” Under 8 CCR §10440, “All allegations that an injury was caused by either the serious and willful misconduct of the employee or of the employer must be separately pleaded and must set out in sufficient detail the specific basis upon which the charge is founded so that the adverse parties and the Workers' Compensation Appeals Board may be fully advised.” 8 CCR §10445 further requires “All allegations that an injury was caused by serious and willful misconduct shall:

(a) When the charge of serious and willful misconduct is based on more than one theory, set forth each theory separately.

(b) Whenever the charge of serious and willful misconduct is predicated upon the violation of a particular safety order, set forth the correct citation or reference and all of the particulars required by Labor Code Section 4553.1.”

Label Item Links Comments
Labor Code Serious and willful misconduct of employee

Serious and willful misconduct of employer

Proof needed to support employer's S&W

LC §4551

LC §4553

LC §4553.1

Insurance Code “An insurer shall not insure against the liability of the employer for the additional compensation recoverable for serious and willful misconduct of the employer or his agent. An insurer may, however, provide insurance against the expense of defending any suit for serious and willful misconduct against an employer or his agent.” Ins. Code §11661  
Regulations/Rules Pleading requirements 8 CCR §10440

8 CCR §10445

 
Cases In Rogers Materials Co. v. IAC (1965) 63 Cal.2d 717, the Supreme Court reviewed the serious and willful cases. It held: “An employer who is aware of the likelihood that his employee will be injured in the performance of his work unless precautions are taken for his safety but deliberately fails to take such precautions, is liable for wilful misconduct. In that connection, we cannot distinguish between the employer who orders the performance of the act which led to the injury, and one who knowingly acquiesces in the dangerous practice.” Rogers Materials Co. v. IAC  
Forms S&W: How to file guide

S&W Application

DWC guide

Application

 
Websites Search by employer OSHA by Employer  
  Search by Fatality and Catastrophe OSHA by Fatality or Catastrophe  
Practice Tips To find safety orders quickly, use the Cal/OSHA search engine.

S&W cases are notoriously hard to win, so before investing time and money in trying to prove up an S&W, make sure you have the facts and the Cal-OSHA regs on your side. Remember that costs and expenses cannot exceed $250, if you win. Remember too that if you win, you have to collect from an employer who is not insured for these costs, and who may declare bankruptcy or hide assets, etc.

Lastly, have a separate retainer agreement for this type of action, specifying a higher fee.

Cal/OSHA search  
Magazine Articles How to Distinguish between Serious and Willful Misconduct & 3rd Party Liability Claims by David L. Hart. Esq. Third Party or S&W?  
Roundtable    
Miscellaneous      

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