Serious and willful misconduct

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A “PRIME” DAY TO GET HURT AT WORK? INJURED WORKERS IN THE NEWS #125

Posted on July 18, 2024 by Edward Singer

A news account reported that Amazon’s Prime Day event is a major case of injuries for United States’ Warehouse Workers. This revelation comes from findings made from a year-long Senate committee investigation.

Two things within the report were interesting. The first was: : “During peak seasons, the company skirts and sometimes even
outright ignores critical safety protocols. One worker’s Prime Day experience shows how dangerous the company’s disturbing culture of “constantly bypass[ing] safety in favor of productivity” Senate Interim Report

Also, it report noted: “Critically, although Amazon’s total injury rate includes minor injuries, such as bruises and superficial cuts, it also includes serious injuries, such as torn rotator cuffs and concussions, which the company should have treated as recordable injuries. This is due both to Amazon’s practice of failing to refer workers for outside medical care and the company’s troubling history of under-recording injuries as required by federal and state regulations.” Senate Interim Report

Is By-passing safety in favor of productivity a Workers’ Compensation Concern?

Yes. In California Workers’ Compensation, there is an additional allegation that can be made against an employer. It is called Serious and Willful Misconduct. Labor Code Section 4553, provides that “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..

Whether the cause of an injury is at the level to be found as a serious & willful misconduct is something addressed by the trier of fact. Further, a factual analysis must be done to establish it.

Why Is Injury Reporting Important For Injured Workers?

For Workers’ Compensation purposes, injury reporting is important. Injury reporting is done through a claim form called a DWC-1. The injury reporting entitles the injured worker to received medical treatment paid for by the employer per Labor Code 5402. Likewise, the claim form triggers the investigation period to accept or deny the claim.

Within the facts presented, it is not indicated whether the injuries were documented as work-related claims. Assuming that the injuries that were unreported to Federal Agencies were provided medical treatment by Amazon, it is likely that Amazon employees were provided a claim form to report the injury.

What If I Need Advice?

If you would like a free consultation regarding workers’ compensation, please contact the Law Offices of Edward J. Singer, a Professional Law Corporation. We have been helping people in Central and Southern California deal with their workers’ compensation cases for 27 years. Contact us today for more information.

EMPLOYER LIABILITY IMPACTS JOBS: INJURED WORKERS IN THE NEWS #111

Posted on March 5, 2024 by Edward Singer

Contra Costa California Library Workers are impacted by liability concerns. It is reported that “[a] California library is shutting down because rampant criminal activity has threatened patrons and employees.” The decision to close the Antioch Community Library branch on Saturday was made after “repeated dangerous incidents,” NBC

This article will discuss how liability impacts employer’s decisions and how it affects employees.

What Is Liability?

Liability essentially means that an individual or entity can be legally responsible for certain events. In the employment setting, employers have responsibility to provide workers’ compensation coverage to their employees. Further, workers’ compensation, in California, is a “no fault” system. Thus, liability is expansive. This is especially the case when there are “dangerous” work conditions. Beyond mere liability, employers who knowingly place their employees in their danger can be subject to an additional claim of “serious and willful misconduct.” Thus, not taking care of a dangerous work hazard can caused heightened liability.

How Far Does Liability Extend?

In the case of the library, liability can extend out to the premises. Thus, the library’s parking lot could be a location upon which an employee could claim injury.

Did Knowledge of the Dangerous Conditions, Impact the Library’s Decision?

Yes. The Library, without instituting new safety measures, could be exposing themselves to additional liability. Thus, it was prudent for the library to institute changes.

What if I Need Advice?

McDonalds’ Workers Serving Up Unhappy Meals? Injured Workers In the News, #109

Posted on February 5, 2024 by Edward Singer

A problematic workplace has plagued an Australian McDonalds. Alleged rat infestation created workplace disharmony along with “… falling ceiling tiles, exposed wiring, and broken air conditioners that are subjecting workers to unnecessary risks.” News.com.au

This article will discuss how whether these workplace problems necessarily translate into workers’ compensation claim for work injury.

Do These McDonalds’ Facts Constitute a Work Injury?

With California Law, horrible work conditions do not automatically translate into work injury claims. Dangerous work conditions are a matter for the Department of Industrial Relations. In California, the Division of Occupational Safety and Health (DOSH), better known as Cal/OSHA, protects and improves the health and safety of working men and women and the safety of passengers riding on elevators, amusement rides, and tramways. This is achieved in a variety of ways including setting and enforcing standards, providing outreach, education, and assistance Issuing permits, licenses, certifications, registrations, and approvals. While there may not be any physical injuries, the conditions may warrant inspections and fines.

Could These Facts Lead to A Work Injury?

Yes. These facts could not only lead to work injuries, but they could also lead to a claim of Serious and Willful Misconduct. Ceiling tiles can fall and injure workers. Workers can trip and fall on exposed wires. Further,, employees can develop heat stroke while working in hot conditions. Finally, there is the possibility an employee could get an infection or disease as a result of the rodents. Finally, these conditions might be so horrible that the workers might suffer emotional stress to the extent that they develop a mental disorder. Any mental disorder claim should be supported by the opinion of a mental health practitioner.

What if I Need Advice?

At SpaceX, Worker Injuries Soar Amidst Elon Musk’s Race to Mars: Injured Workers in the News, #101

Posted on November 14, 2023 by Edward Singer

Elon Musk’s SpaceX Company has been beset with work injuries. According to the DailyMail.com, the injuries have included cuts or lacerations, broken bones, dislocations,, hands or fingers were ‘crushed,’ head injuries, skull fractures, concussions and a traumatic brain injury. Further, there have been burns and eye injuries.

There are allegations of safety failures.

Specifically, in California, the article reports that “[s]enior managers at the Hawthorne, California site had been repeatedly warned about the dangers of rushing the engine’s development, along with inadequate training of staff and testing of components.”

This article will discuss the nature of these work accidents and the special benefits that may apply.

What Special Benefits Can Be Received For Amputations, Burns or Eye Injuries?

In California, there are special extended total temporary disability benefits in the case of amputations, burns and eye injuries. With respect to burns or eye injuries, there are special criteria which apply. Labor Code 4656(c)(3), provides: (c)(3) Notwithstanding paragraphs (1) and (2), for an employee who suffers from the following injuries or conditions, aggregate disability payments for a single injury occurring on or after April 19, 2004, causing temporary disability shall not extend for more than 240 compensable weeks within a period of five years from the date of the injury: (A) Acute and chronic hepatitis B. (B) Acute and chronic hepatitis C. (C) Amputations. (D) Severe burns. (E) Human immunodeficiency virus (HIV). (F) High-velocity eye injuries. (G) Chemical burns to the eyes. (H) Pulmonary fibrosis. (I) Chronic lung disease.”

Thus, for burn injury claims, an analysis must be made as to whether it could be considered as “severe”. With respect to eye injuries, there must be a causation analysis. Was the accident caused by a fast-moving object? Did chemicals cause burns to the eyes?

If There Had Been Repeated Warnings of Dangers, Can This Trigger Additional Compensation?

Labor Code Section 4553 provides for increased compensation if there is serious and willful misconduct. This requires a separate filing and has a different statute of limitation applicable. Serious and Willful Claims usually requires a finding from the Workers’ Compensation Appeals Board. Labor Code Section 4553 indicated “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.”

What If I Need Legal Advice?

MRI Machine Malfunction Leaves Nurse with Crushing Injuries: Injured Workers in the News, #99

Posted on November 2, 2023 by Edward Singer

A Kaiser Nurse from Redwood City California sustained a work-related injury when she was pinned between an MRI machine and a between a bed. She received “deep lacerations requiring surgery after two screws became embedded in her body.” Dailymail.com

It is reported that a probe found that the medical facility ‘failed to provide radiologic services in a safe manner’. Kaiser is now subject to an $18,000.00, fine. Supra. It was noted that the “report found there were several breaches of protocol around the use of the machine, a diagnostic tool used to scan the body using magnetic fields and radio waves.” Supra.

This article will address claims for Serious and Willful Misconduct and how Safety Violations may matter with respect to a workers’ compensation claims.

Are Serious & Willful Misconduct Treated Different From Regular Work Injury Claims?

Yes. Serious & Willful Misconduct claims are secondary matters with respect to a workers’ compensation claim. They require a court filing within one year of the date of the injury. There is a definite statute of limitations that must be complied with in order to pursue such an action. A Petition must be filed timely!

What Labor Code Sections Apply To Serious and Willful Misconduct ( S & W) Claims?

There are two Labor Code Sections which apply to S & Ws.. First, there is California Labor Code § 4553 which provides that: “[t]he 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.

Further, Labor Code § 4553.1 which provides that “[i]n 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.

How Can This Worker Prevail In Her Serious and Willful Misconduct Claim?

For an Injured Worker to prevail and receive the additional compensation, they must prove their case before the WCAB. Therefore, a finding must be made based upon evidence. There must be evidence presented showing both the safety order and the violation of the safety order. Alternatively, a Serious and Willful Claim can be proven under a different theory. As per case law, “[u]nder Mercer-Fraser, willful misconduct occurs when the employer knowingly places the employee in a situation of obvious danger and takes no precautions to protect the employee. Employers must “refrain from such deliberate, knowing and intentional failure to take safety precautions, whereby its employes [sic] were intentionally subjected to known, serious, unnecessary and unreasonable hazards.” [emphasis added]

What If I Need Legal Advice?