Negligence Is Not Enough In Serious and Willful Misconduct
- Posted By: Harvey Brown
- February 1, 2010
This is a very significant case for workers’ compensation principles.
The applicant sustained industrial injuries after being crushed by a compactor. The applicant sustained these injuries because a fellow employee moved the compactor forward rather than backward. It was alleged the fellow employee was not properly trained or given an operating manual to learn how to use the compactor.
The case was settled by way of compromise and release for $60,000.
However, the settlement did not include settlement of the Serious and Wilful Misconduct (S & W).
The case went to trial and the Workers’ Compensation Judge (WCJ) indicated that although the employer was negligent, this did not rise to the level of an S&W allega¬tion. The applicant filed a petition for reconsideration and the Workers’ Compensation Appeals Board (WCAB) agreed with the WCJ.
The applicant then filed a writ for review with the appellate court. The appellate court reviewed existing case law and indicated that serious and wilful misconduct is the antithesis of negligence or even gross negligence.
This is a good case to review for case law on the subject.
- Posted In: Work Injury
En Banc Decision Governing Spinal Surgery
- Posted By: Harvey Brown
- January 1, 2010
This is a very significant case for workers’ compensation principles.
The applicant sustained several injuries to his lower back. A written request was made for back surgery.
Utilization review denied the request. The case went to trial with the applicant contending he needed the surgery. The Workers’ Compensation Judge (WCJ) found that the applicant was in need of the surgery. The defendant filed a petition for reconsideration which resulted in this en banc decision.
The WCAB partially disapproved the appellate decision of Brasher v. Nationwide Studio Fund.
They indicated when a treating recommends spinal surgery the defendant must (1) undertake utilization review (UR) and if they do not do so timely provide the surgery: (2) if defendant fails to timely complete UR they must provide the surgery: (3) if UR denies the request the defendant may object under section 4062(b); (4) the defendant must complete its UR process within 10 days of its receipt of the treating physician report; (5) if the defendant fails to meet the 10 day requirement, the defendant loses its right to a second opinion report and must authorize the surgery.
- Posted In: Work Injury