In my first post, we covered issues that arise earlier in a case (AWW, TD, PTPs, WPI, RFAs, UR and IMR). Part II covered some of the common issues (and shorthand) that would come up later in a case (P&S, stips, C&R, MSA, F&A). Though uncommon, there are particular issues that might exist in a case depending, as always, on the circumstances. This post will cover a couple that pertain to employer’s roles in the injury and aftermath and a couple that can apply based on the degree of the injury and the nature of the injury.
If an injury results in 70% to 99% permanent partial disability, an injured employee is entitled to a “life pension” (LP) payable after the regular disability payments end. (Labor Code § 4659(a).) If injury causes 100% permanent total disability (PTD), payments are made at the temporary disability rate instead of the permanent disability rate.
An injury arising out of Serious and Willful (S&W) misconduct can impact benefits. The benefits can either be increased by half if caused by my employer’s S&W misconduct (Labor Code § 4553). Or reduced by half if caused by my own S&W misconduct (Labor Code § 4552). These claims can have a great impact these claims can have on an employee’s life and employer’s balance sheet. Repeatedly, cases have elaborated that S&W misconduct requires more than negligence or even gross negligence.
For an employer to be found responsible a S&W act, an intentional act must occur along with either the intent to harm, knowledge that serious injury is a probable result, or an affirmative and reckless disregard for another person’s safety. (See Mercer-Fraser Co. v. Industrial Acc. Com. (Soden) (1953) 18 Cal. Comp. Cases 3). As most work injuries arise from accidents, the intentional act is often missing. Likewise, injuries don’t occur under an intersection of actual knowledge of a dangerous condition, knowledge it’s probably going to cause a serious injury, and a purposeful failure to start or initiate any remedial measures.
But it’s certainly not unheard of. Unfortunately, some employers simply do not take safety seriously, even when actually knowing a serious injury is likely.
While violating a safety order can support a S&W claim, the violation must also, of course, be part of the cause of the injury and either the order and conditions making it applicable were known or the condition making it applicable was obvious and created a probability of serious injury and the failure to correct constituted a reckless disregard for the probable injury. (Labor Code § 4453.1.)
What conduct DOES qualify as Serious and Willful Misconduct?
What does NOT qualify as conduct rising to the level of Serious and Willful Misconduct?
Under Labor Code section 132a, an employer cannot legally fire, threaten to fire, or otherwise discriminate against an employee for seeking workers’ compensation benefits or receiving a rating of disability, award, or settlement. An employer can terminate an employee for any lawful reason while a workers’ compensation case is open. In other words, workers’ compensation does not offer enhanced job protection, but it does prohibit discrimination based on claiming workers’ compensation benefits.
Results of a 132a claim can include increased compensation, costs and expenses, reinstatement of a position, and reimbursement for lost wages and benefits.
When does employer conduct become discriminatory under Labor Code section 132a?
What can employers legally do without violating Labor Code section 132a?
What if an injury leaves someone totally permanently disabled but less than 100% of the disability is due to the work injury? What if some is apportioned to prior injuries or chronic conditions? What if the work comp injury is due to one hand and the other was disabled before and that combination leaves someone totally disabled? The Subsequent Injuries Benefits Trust Fund or SIBTF was designed to address situations like these. Such a case can help fill the gap between a work comp injury that’s less than 100% disabling and the reality of 100% disability due to a combination of the work comp injury and prior disabilities or limitations. These cases do not carry work comp benefits like medical care or temporary disability, but in cases where prior injuries and a work injury combine to leave someone totally disabled, they can be a true and necessary life-line.
My Partner Tim and I are both experienced in litigating the above issues. If there is any concern your claim might involve any of the above, please reach out for a free consultation immediately.
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