In a S&W claim, the injured employee has the burden of proving that his/her employer had knowledge that serious injury would probably result if it directed the employee, to engage in a dangerous on-the-job activity.
Under Labor Code § 4553.1, the employee may use Cal/OSHA’s findings of regulation violations to prove his/her case against the employer. Cal/OSHA’s findings of the employer’s violations, establish the standard of care for employer. And the violation of a safety order establishes serious & willful liability where the injured worker can prove:
- The “specific manner” in which a safety order was violated;
- That the violation of the safety order proximately caused the employee’s injury; and
- That both the safety order and the conditions making the safety order applicable to the work were known by the employer or the employer’s managing representative.
Upon successfully proving this at a Workers’ Compensation Appeals Board trial, an injured worker can be awarded a judgment increasing his/her total paid workers’ compensation benefits by 50%. This increased sum of money is not covered by the employer’s workers’ comp insurance, but would have to be paid out of employer’s pocket to the injured worker.