Serious and Willful Misconduct (S&W) can be applied both to the Employer and the Employee, and the benefits are harsh on each side. S&W has a high threshold of proof, and is more than mere negligence. Since the Workers’ Compensation system is No-Fault, simple negligence is insufficient to incur additional penalty. S&W does not require actual intent to cause injury, but does require an overt act which disregards a known risk of injury. Removing a safety guard from a machine or locking an emergency exit are examples that potentially satisfy the burden.
If the employee is injured in the course of his own Serious and Willful Misconduct, the Court can order that the worker’s benefits be cut in half as a penalty for the behavior. There are several exceptions to the reduction:
- The injury results in death (death penalty might be sufficient);
- The injury results in permanent disability of 70% or more;
- The injury is caused by employer’s failure to heed safety laws or regulations;
- The injured worker was under 16 at time of injury.
If the employee is injured as a result of Serious and Willful Misconduct of the employer, the Court can order that benefits due the worker be increased by 50%. The penalty applies to all benefits, and there is no cap to the increase. Because this penalty is not insurable, the simple purchase of valid insurance does not prevent direct liability by the employer. Since the penalty has no cap, a severe injury can result in a very large penalty.
In order for the worker to prevail on the S&W claim, there must be an OVERT act by the employer or his managing representative. Such a representative could be a corporate officer, business partner, or managing superintendent/foreman/shift leader. The petition for S&W penalty must be filed within 1 year of the accident, or it is barred by the statute of limitation.
If you require a Serious and Willful Defense, contacting a Certified Specialist in Workers’ Compensation is a wise move.