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Things You Hope You Will Never Need to Know: Liability Arising from Serious Workplace Injury

Posted in Labor Law, New Legislation and Regulations, Wage & Hour

Liability arising from serious workplace injury can be divided into four general categories: (1) worker’s compensation; (2) administrative agency (OSHA); (3) criminal liability; and (4) other civil liabilities.

  1. Worker’s Compensation

    Worker’s compensation is, for the most part, a strict liability system -any bona fide workplace injury, regardless of cause – is covered.Chuck-Post-07_web

The worker’s compensation system provides medical treatment, wage replacement and, in some cases, vocational rehabilitation.  Civil claims against an employer as a result of a workplace injury are, with only a few narrow exceptions, prohibited. Those civil claims (negligence, etc.) are barred by the worker’s compensation exclusivity preemption rule, which makes the worker’s compensation system the exclusive forum for all claims resulting from worker injury – including serious injury and death.

In certain cases, an employee may seek an enhancement of these benefits by claiming that the injury resulted from the employer’s serious and willful violation of worker safety (“S&W claim”). If successful, the injured worker’s benefits will be enhanced up to 150 percent of the underlying worker’s compensation award. For example, three million in medical and wage replacement could result in up to $1.5 million in S&W liability. There is also a corollary provision allowing for some reduction in worker’s compensation benefits in cases where the injured worker engaged in serious and willful misconduct causing the injury.

Your worker’s compensation carrier will process and administer the claim and, if necessary, defend the company (and appoint counsel) in the event that its claim decisions are appealed or if there are other claim proceedings before the Worker’s Compensation Appeals Board (“WCAB”).

Worker’s Compensation Insurance Carriers are barred by law from defending employers in S&W claims or indemnifying them for any S&W award. This is like the rule that punitive damages and fines are not insurable.

If an S&W claim is brought against your company, the company will be required to defend itself (by retaining counsel) and cover any penalty from its own resources and revenues.

  1. Administrative Agency Liability (Cal-OSHA).

Cal-OSHA is responsible for worker safety regulation and enforcement.  Cal-OSHA is required to investigate all employer reports of workplace injury or death.

Cal-OSHA has specific regulations and permitting requirements for industries and hazardous activities. For an overview, see: https://www.dir.ca.gov.

Noncompliance with OSHA regulations can result in civil and criminal penalties. An explanation of the citation levels and civil and criminal penalties can be found on page ten of the following OSHA pamphlet: http://www.dir.ca.gov/dosh/dosh_publications/osha_userguide.pdf.

In sum, violations of OSHA regulations can result in issuance of a citation. These citations range from” regulatory” violation (least serious) through “general”, “serious”, “accident related serious, “willful” and “repeat” violations.  The last types of citation are the most serious.   If a citation is issued there is an opportunity to discuss the citation with the investigator and OSHA staff. Following citation issuance, the citation (and associated fines/penalties) may be appealed to a hearing before an administrative law judge within OSHA. In turn, those decisions may further appealed and reviewed on the record by the Cal-OSHA appeals board.

  1. Criminal Liability

A willful violation that results in death or permanent or prolonged impairment of the body of an employee may result in criminal liability. (This liability is also discussed on page ten of the OSHA pamphlet linked above.)  Both fines and imprisonment are possible.

There are also separate criminal liabilities for making false statements in the course of a workplace accident investigation.

  1. Civil Claims.

As stated above, almost all civil claims against an employer (for workplace injury) are preempted by the worker’s compensation remedy. This includes actions for negligence/wrongful death by a worker’s family against the employer.  Workers may sue non employer third parties for injuries. These non-employer parties can include manufactures of products that caused (or may have caused) the injury or (non workplace) operators of vehicles that cause injury.

The attorneys in Weintraub Tobin’s Employment Law Group assist employers in all areas of employment law.  Contact any one of us if we can be of assistance.