I was injured after my employer ignored unsafe working conditions. What can I do?

Question:

I’m a construction worker in California, and I’ve been complaining to my foreman about unsafe working conditions. One of the scaffolds that I’ve been working on felt shaky, like it could collapse at any minute. I told the foreman about this several weeks ago, but nothing was done. Recently, while working on the scaffold about ten feet from the ground, it suddenly collapsed. I fell and suffered some pretty serious injuries. Is there anything I can do other than file a workers’ comp claim?

Answer:

When employees are injured at the workplace, the general rule is that they can only recover for their injuries through workers’ comp; they can’t sue their employers in court. In some states, there is an exception for “intentional or egregious” conduct on the part of the employer. In these states, a worker may sue his or her employer in court when the employer either intentionally harmed the employee or acted in an extremely careless or reckless manner.

While California doesn’t have an “intentional or egregious” exception that would allow you to sue in court, it does have a similar rule through workers’ comp. In limited circumstances, you can file a claim against your employer for “serious and willful” misconduct. If you are successful, you will receive a 50% increase in your workers’ comp benefits. However, these types of claims are difficult to prove and usually require the expertise of a workers’ comp lawyer.

To prove a serious and willful misconduct claim, you must show that your employer’s actions (or inactions) were either intentionally harmful or done with the knowledge that harm would likely result. This can be a difficult standard to meet. Conduct that is careless, thoughtless, or even irresponsible will not necessarily qualify. Rather, your employer must have acted with an extreme disregard for your safety.

A clear violation of health and safety codes, such as those set by the California Occupational Safety and Health Administration (Cal OSHA), could qualify as serious and willful misconduct. Intentionally removing safety equipment and instructing employees to continue working could also qualify as serious and willful misconduct.

In your case, you may have a case against your employer for serious and willful misconduct. Scaffolding accidents are common causes of serious injuries at construction sites, and Cal OSHA has created various rules to increase safety in these situations. If you can show that your employer violated one of these safety rules and failed to correct it even after you complained, you may have a case.

Because these claims are very difficult to win and follow a different set of rules than a typical workers’ comp claim, you should consult with an experienced workers’ comp attorney right away. A lawyer can assess your claim, identify any safety violations, and advise you on the likelihood of winning your claim.

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