Serious and willful misconduct (S&W)

What it is

An S&W claim alleges that the injury happened because of the serious and willful misconduct of the employer or its managing representative, a partner or general superintendent of a partnership, or an executive, managing officer or general superintendent of a corporate employer. It is a separate claim within the workers' comp case, heard at the WCAB.

The rule and its deadlines

If proven, the compensation otherwise recoverable is increased by one-half, plus costs and expenses up to $250 (Labor Code section 4553). The claim must be brought within twelve months from the date of injury, and that period is not extended by payment of compensation, an agreement, or filing the main application (Labor Code section 5407). When the claim rests on a safety order violation, the Board must make specific findings, including the manner in which the order was violated and that the violation proximately caused the injury (Labor Code section 4553.1).

Why it matters to an applicant firm

The 12-month deadline does not move, and it often runs before the facts of the employer's conduct are developed. Applicant firms screen at intake for signs of a safety violation, such as a Cal/OSHA citation, a removed machine guard, or prior complaints, and file within the year if the facts support it. A one-half increase on all compensation can change the value of a serious injury case substantially. See the workers' comp case management guide for tracking claim-specific deadlines.