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Serious & Willful Claim


Generally, filing a workers compensation claim is the exclusive remedy if an employee suffers an injury at work. This The formost Worker Comp. Attorney in So. CAmeans that the employer and the employee’s co-workers are not subject to lawsuits by an employee who gets injured or becomes ill because of work conditions, or because of a co-worker’s actions. However, if the injury is the result of the Employer’s Serious and Willful(1) misconduct, then the injured worker can file a Serious and willful claim directly against the employer, not the employer’s insurance company. Serious and Willful is an intentional act or more than negligent improper act or omission by the employer with knowledge that a serious injury will be a probable result of such act. Further, the employer’s misconduct could result in failure to provide a safe workplace or to violate a safety order and the employee was injured as a consequence of such misconduct.

However, the misconduct must be willful; It is not enough that a workplace was unsafe and a worker was injured, or that a safety order was violated and a work-related injury occurred. There must be a causal connection between the willful misconduct on the part of the employer and the injury itself. The misconduct must actually be a contributing factor to the cause of the injury.


If a judge finds there was serious and Willful conduct on the part of the employer, he or she may award up to 50% increase in compensation to the injured worker. The increase applies to both indemnity and non-indemnity benefits. Since the claim is filed against the employer, any increase will have to be paid directly by the employer rather than the employer’s insurance company.


To illustrate, suppose a truck driver was driving the company’s truck and sustained a very serious injury as a result of faulty brakes. Under these facts the injured driver can file for a workers’ compensation claim to get treatment and other benefits. The question is: would there be grounds to increase the injured driver’s compensation by 50% because of the employer’s serious and willful misconduct?

It depends, if the employer knew that the brakes of the truck were faulty and knowing they were faulty, nevertheless requested the driver to drive the truck anyway, the Employer may be liable for serious and Willful conduct, and a corresponding increase of up to 50% of the compensation due to the injured worker.

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(1) https://www.dir.ca.gov/dwc/iwguides/IWGuide08.pdf

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