Managing Employee Injuries and Disability and Occupational Safety

E. C HALLENGES TO B ENEFITS

When an employer files an unsuccessful petition to reduce or terminate benefits, the Appeals Board may require the employer to pay costs and attorney’s fees. If the employer files an unsuccessful appeal and it is determined that the appeal had no reasonable basis, the Board may assess costs and attorney’s fees.

F. S ERIOUS AND W ILLFUL M ISCONDUCT OF AN E MPLOYEE

Except where an injury results in death or a permanent disability of 70% or more, the compensation otherwise payable is reduced by half where an injury is caused by the serious and willful misconduct of the injured employee who is at least 16 years of age. Labor Code Section 4551. A mere incorrect decision or technical violation of instructions does not constitute serious and willful misconduct. In addition, the dereliction must be the cause of the injury. If the injury would have occurred anyway, the employee will not be penalized. Willful misconduct involves an intentional wrongdoing with knowledge that the conduct is likely to result in injury. G. D ISCRIMINATION It is a declared policy of this state that there should not be discrimination against workers who are injured in the course and scope of their employment. It is a misdemeanor for an employer or insurer to discriminate against an employee because the employee has filed or has made known the intention to file a claim for compensation with the employer or an application for benefits with the WCAB. Labor Code Section 132(a). Labor Code Section 132(a) is discussed extensively in the chapter entitled “Personnel Management and the Industrially Injured Employee”.

T HIRD P ARTY L IABILITY AND E MPLOYEE C IVIL A CTIONS

Section 7

A. T HIRD P ARTY S UBROGATION If an employee sustains an injury in the course and scope of his employment as a result of the negligence of a third party, the employee himself and his employer have a right to proceed against the responsible party. Labor Code Section 3852. For example, assume an employee is injured in an automobile accident in the course of his employment. If some person other than the employee or a co-worker can be held legally responsible for the injury, then the employee and the employer both have rights against the party.

Managing Employee Injuries, Disability and Occupational Safety ©2019 (s) Liebert Cassidy Whitmore 53