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If you were injured at work, you may have been told that workers’ compensation will pay for the cost of your medical bills and a portion of your lost income. In exchange for accepting these benefits, you typically give up your right to sue your employer in court, regardless of who was responsible for the accident. In the workers’ compensation system, this “no-fault” agreement protects the injured worker from the financial burden of recovery and the employer from having to defend a personal injury claim. However, there are some important exceptions where filing a lawsuit outside of workers’ compensation may be permitted.


An injured worker can file a lawsuit against his or her employer for intentional harm. In these cases, an employer must have hurt the employee on purpose, resulting in an injury. The injury can be physical or emotional and may arise out of battery, assault, false imprisonment, fraud, intentionally inflicted emotional distress, defamation, invasion of privacy, stealing, or trespassing. For example, an assembly line worker, Brian and his employer, Tom, get in a heated argument. Tom pushes Brian so hard that he falls into a supply cabinet and suffers a concussion. Brian can sue Tom for his injury outside of workers’ compensation because his boss intentionally hurt him.


You may also be able to sue your employer if your injury was caused by “serious and willful misconduct.” In these cases, the employer’s negligence must be so deplorable that it’s equivalent to intentional harm. To be able to sue your employer for serious and willful misconduct, the employer must have been aware of the dangerous condition, known that continuing to work in such conditions would likely lead to serious injury, and purposefully failed to take corrective action. For example, an employer fails to provide sufficient lighting in a truck yard that he knows is full of tripping hazards, and it results in the slip and fall of a worker. An employer may also exhibit serious and willful misconduct if he or she forces an employee to work in conditions that fail to meet safety regulations and refuses to provide the proper protective equipment to prevent an accident.


If you suffered a workplace injury and are considering filing a negligence lawsuit against your employer, talk to an attorney first. Once you have submitted your workers’ compensation claim, you can file a petition for serious and willful misconduct to the Workers’ Compensation Appeals Board (WCAB). An injury caused by serious and willful misconduct increases a worker’s total compensation by 50 percent, which may translate to a large settlement depending on the facts of your case. At The Law Office of Matthew Russell, we have more than 45 years of experience defending the rights of injured workers in San Diego, including those hurt due to gross negligence and serious and willful misconduct. Schedule your free consultation to see what we can do for you.

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