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

You might be able to collect extra workers’ comp benefits in California if your injury resulted from your employer’s serious and willful misconduct.

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 get compensation for their injuries through workers’ comp; they can’t sue their employers in court. In some states, there is a limited exception when an employer intentionally hurt an employee.

California doesn’t have an “intentional act” exception that would allow you to sue your employer in civil court. However, it does have a provision that could allow you to collect a penalty if you can prove that were injured because of your employer’s “serious and willful misconduct.” If you’re successful, you will receive a 50% increase in your workers’ comp benefits.

It’s not easy to prove a serious and willful misconduct claim. You must show that your employer’s actions or failure to act were:

  • intentionally harmful
  • done with the knowledge that serious injury would probably result, or
  • done with reckless, absolute disregard of the likely negative consequences.

Actions that are merely careless, thoughtless, or even irresponsible are not enough to be considered serious and willful misconduct.

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

In your case, you may be able to show that your injury resulted from 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. You could have a case against your employer if you can show that a specific person in charge (such as your foreman) knew that one of these safety rules applied to your work site but violated the rule, and that the violation caused your injury.

Because claims for serious and willful misconduct are very difficult to win and follow a different set of rules than typical workers’ comp claims, you should consult with a lawyer as soon as possible. An experienced workers’ comp attorney can assess your case, identify any safety violations, and advise you on the likelihood of winning your claim.

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