Home > Serious and Willful > On Confusing Serious and Willful With Generic Workers’ Compensation

On Confusing Serious and Willful With Generic Workers’ Compensation

In California’s Workers’ Compensation system, the standard to establish compensability is fairly low — if you got hurt at work, or your injury is the type that could occur at work, you will likely be compensated.  Most of the fighting in workers’ compensation is really over how much compensation – the deck is usually stacked against the employer from the start of the process.

In this way, the burden placed upon the applicant in the workers’ compensation arena is lower than the negligence requirements placed upon a tort plaintiff.

But a claim for additional compensation for serious and willful misconduct presents a much higher standard (Labor Code § 4553).  In the writ denied case of Flores v. Workers’ Compensation Appeals Board (2011 Cal. Wrk. Comp. Lexis 138), applicant’s efforts to recover under § 4553 did not carry this higher burden.

Flores was a lead mechanic in a tomato cannery and was summoned to the scene of a low pressure steam line that had separated when a clamp came loose.  Ignoring the company safety protocols regarding calling a supervisor to turn off the pipe and giving time for it to cool, Flores went diligently to his repair work until a burst of steam burned his leg.

The theory in this case, which applicant stood firm with all the way to the Court of Appeal, was that his past suggestions, that double bolt clamps be used instead of butterfly clamps to bind steam lines, satisfied the “notice” and “reckless disregard” requirements of § 4553, was rejected by all three courts.  Further testimony showed that butterfly clamps were, in fact, factory recommended for low-steam pipes.

Labor Code § 4553 sets out a relatively higher standard for prevailing on a serious and willful claim, and rightly so.  To justify the conduct that § 4553 seeks to punish and discourage, an employer or its agent would almost have to try or intend to get the applicant injured.

All that happened in this case was what the workers’ compensation system was designed for – Mr. Flores sustained an injury in the course of his duties, and he was compensated generously appropriately.

Fortunately for the tomato canning industry, the Workers’ Compensation Judge, the Workers’ Compensation Appeals Board, and the Court of Appeal all agreed on this last point.

Categories: Serious and Willful
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