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Article 1. General Provisions of California Labor Code >> Division 4. >> Part 2. >> Chapter 2. >> Article 1.
Where liability for compensation exists under this division,
such compensation shall be furnished or paid by the employer and
shall be as provided in this chapter.
Where the injury is caused by the serious and willful
misconduct of the injured employee, the compensation otherwise
recoverable therefor shall be reduced one-half, except:
(a) Where the injury results in death.
(b) Where the injury results in a permanent disability of 70 percent or over.
(c) Where the injury is caused by the failure of the employer to comply with any provision of law, or any safety order of the Division of Occupational Safety and Health, with reference to the safety of places of employment.
(d) Where the injured employee is under 16 years of age at the time of injury.
(a) Where the injury results in death.
(b) Where the injury results in a permanent disability of 70 percent or over.
(c) Where the injury is caused by the failure of the employer to comply with any provision of law, or any safety order of the Division of Occupational Safety and Health, with reference to the safety of places of employment.
(d) Where the injured employee is under 16 years of age at the time of injury.
The reduction of compensation because of the serious and
willful misconduct of an employee is not enforceable, valid, or
binding in any respect until the appeals board has so determined by
its findings and award as provided in Chapter 6 of Part 4 of this
division.
The amount of compensation otherwise recoverable shall be
increased one-half, together with costs and expenses not to exceed
two hundred fifty dollars ($250), where the employee is injured by
reason of the serious and willful misconduct of any of the following:
(a) The employer, or his managing representative.
(b) If the employer is a partnership, on the part of one of the partners or a managing representative or general superintendent thereof.
(c) If the employer is a corporation, on the part of an executive, managing officer, or general superintendent thereof.
(a) The employer, or his managing representative.
(b) If the employer is a partnership, on the part of one of the partners or a managing representative or general superintendent thereof.
(c) If the employer is a corporation, on the part of an executive, managing officer, or general superintendent thereof.
In order to support a holding of serious and willful
misconduct by an employer based upon violation of a safety order, the
appeals board must specifically find all of the following:
(1) The specific manner in which the order was violated.
(2) That the violation of the safety order did proximately cause the injury or death, and the specific manner in which the violation constituted the proximate cause.
(3) That the safety order, and the conditions making the safety order applicable, were known to, and violated by, a particular named person, either the employer, or a representative designated by Section 4553, or that the condition making the safety order applicable was obvious, created a probability of serious injury, and that the failure of the employer, or a representative designated by Section 4553, to correct the condition constituted a reckless disregard for the probable consequences.
(1) The specific manner in which the order was violated.
(2) That the violation of the safety order did proximately cause the injury or death, and the specific manner in which the violation constituted the proximate cause.
(3) That the safety order, and the conditions making the safety order applicable, were known to, and violated by, a particular named person, either the employer, or a representative designated by Section 4553, or that the condition making the safety order applicable was obvious, created a probability of serious injury, and that the failure of the employer, or a representative designated by Section 4553, to correct the condition constituted a reckless disregard for the probable consequences.
In case of the willful failure by an employer to secure the
payment of compensation, the amount of compensation otherwise
recoverable for injury or death as provided in this division shall be
increased 10 percent. Failure of the employer to secure the payment
of compensation as provided in Article 1 (commencing at Section 3700)
of Chapter 4 of Part 1 of this division is prima facie evidence of
willfulness on his part.
In case of failure by an employer to secure the payment of
compensation, the appeals board may award a reasonable attorney's fee
in addition to the amount of compensation recoverable. When a fee is
awarded under this section no further fee shall be allowed under
Section 4903 but the provisions of Section 4903 shall be applicable
to secure the payment of any fee awarded under this section.
Whenever a petition to reduce an award, based upon a
permanent disability rating which has become final, is denied, the
appeals board may order the petitioner to pay to the injured employee
all costs incident to the furnishing of X-rays, laboratory services,
medical reports, and medical testimony incurred by such employee in
connection with the proceeding on such petition.
The increases provided for by this article shall not be
limited by the provisions of Chapter 1 of this part relating to
maximum amounts in the computation of average earnings.
Where the injury is to an employee under 16 years of age and
illegally employed at the time of injury, the entire compensation
otherwise recoverable shall be increased fifty percent (50%), and
such additional sum shall be paid by the employer at the same time
and in the same manner as the normal compensation benefits.
An employer shall not be held liable for the additional
compensation provided by this section if such an employee is hired
pursuant to a birth certificate, automobile driver's license, or
other reasonable evidence of the fact the employee is over the age of
15 years, even though such evidence of age were falsely obtained by
the employee. The additional compensation provided by this section
shall not exceed the maximum sum specified by Section 4553 for
additional compensation payable for serious and willful misconduct on
the part of an employer. This section shall not apply to the State
or any of its political subdivisions or districts.
(a) As used in this section:
(1) "Employer" means a named identifiable person who is, prior to the time of the employee's injury or death, an owner or supervisor having managerial authority to direct and control the acts of employees.
(2) "Failure to install" means omitting to attach a point of operation guard either provided or required by the manufacturer, when the attachment is required by the manufacturer and made known by him or her to the employer at the time of acquisition, installation, or manufacturer-required modification of the power press.
(3) "Manufacturer" means the designer, fabricator, or assembler of a power press.
(4) "Power press" means any material-forming machine that utilizes a die which is designed for use in the manufacture of other products.
(5) "Removal" means physical removal of a point of operation guard which is either installed by the manufacturer or installed by the employer pursuant to the requirements or instructions of the manufacturer.
(6) "Specifically authorized" means an affirmative instruction issued by the employer prior to the time of the employee's physical injury or death, but shall not mean any subsequent acquiescence in, or ratification of, removal of a point of operation safety guard.
(b) An employee, or his or her dependents in the event of the employee's death, may bring an action at law for damages against the employer where the employee's injury or death is proximately caused by the employer's knowing removal of, or knowing failure to install, a point of operation guard on a power press, and this removal or failure to install is specifically authorized by the employer under conditions known by the employer to create a probability of serious injury or death.
(c) No liability shall arise under this section absent proof that the manufacturer designed, installed, required, or otherwise provided by specification for the attachment of the guards and conveyed knowledge of the same to the employer. Proof of conveyance of this information to the employer by the manufacturer may come from any source.
(d) No right of action for contribution or indemnity by any defendant shall exist against the employer; however, a defendant may seek contribution after the employee secures a judgment against the employer pursuant to the provisions of this section if the employer fails to discharge his or her comparative share of the judgment.
(1) "Employer" means a named identifiable person who is, prior to the time of the employee's injury or death, an owner or supervisor having managerial authority to direct and control the acts of employees.
(2) "Failure to install" means omitting to attach a point of operation guard either provided or required by the manufacturer, when the attachment is required by the manufacturer and made known by him or her to the employer at the time of acquisition, installation, or manufacturer-required modification of the power press.
(3) "Manufacturer" means the designer, fabricator, or assembler of a power press.
(4) "Power press" means any material-forming machine that utilizes a die which is designed for use in the manufacture of other products.
(5) "Removal" means physical removal of a point of operation guard which is either installed by the manufacturer or installed by the employer pursuant to the requirements or instructions of the manufacturer.
(6) "Specifically authorized" means an affirmative instruction issued by the employer prior to the time of the employee's physical injury or death, but shall not mean any subsequent acquiescence in, or ratification of, removal of a point of operation safety guard.
(b) An employee, or his or her dependents in the event of the employee's death, may bring an action at law for damages against the employer where the employee's injury or death is proximately caused by the employer's knowing removal of, or knowing failure to install, a point of operation guard on a power press, and this removal or failure to install is specifically authorized by the employer under conditions known by the employer to create a probability of serious injury or death.
(c) No liability shall arise under this section absent proof that the manufacturer designed, installed, required, or otherwise provided by specification for the attachment of the guards and conveyed knowledge of the same to the employer. Proof of conveyance of this information to the employer by the manufacturer may come from any source.
(d) No right of action for contribution or indemnity by any defendant shall exist against the employer; however, a defendant may seek contribution after the employee secures a judgment against the employer pursuant to the provisions of this section if the employer fails to discharge his or her comparative share of the judgment.
