Serious and willful misconduct

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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?

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.

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.

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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.”

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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]

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Willful Misconduct in the Workplace Examples | Injured Workers in the News #89

Posted on July 26, 2023 by Edward Singer

A news report about the President of the United States offers an excellent example as to a claim of Serious and Willful Misconduct is within California Workers’ Compensation.

While the facts do not fall within workers’ compensation, they do lay out facts that offer an insight as to what would be considered as excellent example of what constitutes serious and willful misconduct.

According t the facts, the President’s dog, a german shepherd, has bitten seven people over a period of four months. Additional facts, per the Dailymail is that the “ [secret service] officers called the dog ‘freaking crazy’. One officer indicated that “ he [the dog] would have been ‘put down’ if he didn’t belong to the Bidens and said he needed a muzzle.” It was also reported that “on November 10, 2022, Jill Biden ‘couldn’t regain control’ of Commander as the dog charged another member of the Secret Service.”

What Is Serious and Willful Misconduct? Why Is It Important?

Labor Code Section 4553, 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.

One version of Serious and Willful Misconduct is actions that exceed negligence.

Who Are The People Who Can Engage In Serious and Willful Misconduct?

The people who can commit serious and willful misconduct are defined in Labor Code Section 4553. This includes (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, and (c) If the employer is a corporation, on the part of an executive, managing officer, or general superintendent thereof.

What Is The Nature of Serious and Willful Misconduct?

“Serious and willful misconduct within the meaning of section 4553 is an act deliberately done for the express purpose of injuring another, or intentionally performed whether with knowledge that serious injury is a probable result or with a positive, active, wanton, reckless and absolute disregard of its possibly damaging consequences.” (Ferguson v. Worker’s Comp. Appeals Bd. (1995) 33 Cal.App.4th 1613, 1622 [39 Cal. Rptr. 2d 806, 60 Cal. Comp. Cas 275].) Serious and willful misconduct is greater than negligence or even gross negligence. (Mercer-Fraser Co. v. Ind. Acc. Comm. (1953) 40 Cal.2d 102, 120 [251 P.2d 955, 18 Cal. Comp. Cas 3]; Johns-Manville Sales Corp. v. Workers’ Comp. Appeals Bd. (1979) 96 Cal.App.3d 923, 931 [158 Cal. Rptr. 463, 44 Cal. Comp. Cas 878].)

What Makes These Facts Suggestive of Serious and Willful Misconduct?

The facts laid out can show that the employer or management was aware of a known danger. The President was well aware that his dog was dangerous. The first bite was the proof. Thus, any further biting of employees would be considered as an act of serious and willful misconduct. Additional facts to support this position are that it was known by management aht the dog was “crazy” and requests had been made that that the dog be muzzled.

In essence, fact preceding any further bite or attack are crucial to the analysis. Surely, this matter exceeded mere negligence. Whether or not this matter falls into serious and willful misconduct would be the subject of the trier of fact. In other words, the only way that this can be determined is by a Judge’s ruling after a trial.

What If I Need Legal Advice?