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Law Offices of Jeremy K. Lusk, Inc.

Consider the following hypothetical situation:  I was injured at work while operating a fork lift in the warehouse.  The forklift was supposed to automatically stop moving once the operating handle is released.  I was backing up the forklift and I realized I was getting too close to the wall.  I released the operating handle but it continued to roll and ran over my foot.   My foot is broken and will need significant medical treatment.  I am receiving workers’ compensation benefits.  Are there other rights that I might be allowed to receive?  A friend said something about a serious and willful petition.

That could be a possibility here.  Workers' compensation allows for a serious and willful misconduct claim in which, if proven, compensation benefits can be increased by 50%.  These are very difficult to prove.  It generally has to be proven that the employer was intentionally engaged in a conduct either with the knowledge that it will likely result in serious injury or with a wanton and reckless disregard of its possible consequences.  This has to be more than just negligence, or failure to do something that should have been done. 

If the forklift operating handle referenced above was broken due to failure to maintain it, then this is a situation where the employer is not properly doing something they are supposed to do.  This would not likely support a serious and willful claim.  On the other hand, if the operating handle is visibly broken, the employer knew about it, and intentionally took the wrong action, than this could amount to a serious and willful claim.  For example, let us say the employer knew it would cost a lot of money to properly repair the handle.  So they chose to use tape to secure the handle, and ordered the employees to operate the forklift knowing serious injury could result.    The employee follows instructions and operates the fork lift.  The employee releases the handle and it does not stop.  The employee has his foot amputated as a result of this.   This scenario may be a serious and willful claim which would allow the injured employee an increase in benefits.  

If you have questions about your workers' compensation case and want to talk to an attorney in Fresno, call 559-408-7436 or fill out the form to the right.

What does Serious & Willful mean?

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