If an employee's injury is caused by the serious and willful misconduct of the employer, the employee is entitled to additional compensation. The amount of compensation can be increased one-half with no maximum cap where the employee is injured by reason of the serious and willful misconduct of the employer. Claims brought under Labor Code 4553 are commonly abbreviated as S&W claims. The employee must file a Petition for Serious and Willful Penalty against the employer in addition to the application for workers' compensation benefits. The term "serious and willful misconduct" has been interpreted extensively by the case law. An employer must have an exceptionally high degree of fault, even surpassing gross negligence to be considered to have engaged in serious and willful misconduct that caused the injury. Our office is well versed on defeating a claim of such a claim of misconduct. A supplemental award to an injured employee for serious and willful misconduct is analogous to an award for punitive damages in a tort action. The amount of increased compensation payable to an employee who is injured as a result of serious and willful misconduct is considerable. Unlike a discrimination claim under Labor Code 132a, a serious and willful injury claim does not limit the increased compensation to $10,000 when an injury is caused by an employer's serious and willful misconduct. The increase is not limited by statutory maximum earning amounts. Furthermore, the 50 percent increase is to be calculated based on the entire award, not just compensation indemnity. The award must be calculated with reference to every benefit or payment conferred on the injured employee, including medical treatment payments, medical-legal fees and mileage expense, as well as all indemnity benefits. A Safety Order violation issued by California Division of Occupational Safety and Health, no matter how small of violation, can also result in a finding of serious and willful misconduct. The firm of Slade Neighbors understands the potential impact and is knowledgeable on ways to defeat or minimize the Cal OSHA violation in the workers’ compensation case. |