What is “serious and willful misconduct?”
Under California Labor Code section 4553, if you can prove that your injury was the result of serious and willful misconduct by the employer, then the amount of compensation you can recover is increased by one-half. However, under section 4551, if the injury is caused by your own serious and willful misconduct, then the compensation recoverable is reduced by one-half, except in certain circumstances. The law does not define what constitutes “serious and willful misconduct,” so it is up to the attorneys representing the parties to prove or refute a claim of serious and willful misconduct.
What if my boss didn’t have workers’ compensation insurance when I was injured?
A worker who becomes sick or is injured while working for an uninsured employer may still get workers’ compensation benefits. These benefits are paid by the Division of Workers’ Compensation (DWC) from its Uninsured Employer’s Benefit Trust Fund. DWC may then seek reimbursement from the employer. You still have to follow the claims process, including any hearings and appeals that may be necessary.
How much will I receive in wage replacement benefits?
Generally speaking, Temporary Disability benefits equal two-thirds of your gross wages at the time of the injury, within the minimum and maximum amounts set by law. TD payments can last for up to two years until you are able return to work. The amount you can receive for Permanent Disability depends upon your disability rating, which is determined according to a complicated formula based on the doctor’s report and other factors.
Why do I need a lawyer to represent me in a workers’ compensation claim?
Persons unfamiliar with the process may find it confusing and intimidating. They may miss important deadlines or hurt their case by not gathering the right information or by making misstatements. Our attorneys can advise you through the claims process and help ensure the success of your claim.
If your claim is challenged by the employer, then legal representation becomes even more important. Since employers have to pay for workers’ compensation claims through higher insurance premiums, it is in their interest to challenge a claim for benefits. They may do this by alleging that an injury was the result of your own serious and willful misconduct, as described above. Other employer defenses include alleging that the claim is fraudulent or that the injury was not work-related, is not as serious as is claimed, or is the result of a pre-existing condition. Overcoming these charges and proving your case requires the legal skill and knowledge of the law of an experienced workers’ compensation attorney.