Penalties: increased and reduced compensation on account of fault
| Author | David L. Pollak/Roger A. Tolman, Jr./Monika R. Reyes |
| Pages | 627-719 |
PENALTIES
12-1
CHAPTER 12
PENALTIES:
Increased and Reduced Compensation on Account of Fault
I. INTRODUCTION
§12:01 Effect of Fault
II. EMPLOYER SERIOUS AND WILLFUL MISCONDUCT
§12:08 Introduction
§12:09 Person(s) Who Can Commit Serious and Willful Misconduct
§12:10 Causation
§12:11 Safety Order Violations
§12:12 More Than “Negligence”
§12:13 Willful Failure to Act
§12:14 Proof of Employer Knowledge of Danger
§12:15 Subsequent Remedial Measures
§12:16 Active or Passive Misconduct
§12:17 Examples of Inadequate Precautions, Supervision
§12:18 “Customary and Usual Practice” Not a Defense
§12:19 [Reserved]
§12:20 Amount of Serious and Willful Misconduct Penalty
§12:21 Costs: $250 Cap
§12:22 No Insurance Except Defense
§12:23 Benefits Payable to Heirs if No Dependents
III. EMPLOYEE SERIOUS AND WILLFUL MISCONDUCT
A. LC §4551
§12:40 Compensation Halved
§12:41 Not Applicable for: Death; 70% PD; Employer Safety Violation; Minor
§12:42 Not Contributory or Comparative Negligence
B. Procedures
§12:50 Pleadings and Allegations
§12:51 Statute of Limitations
IV. AGGRAVATION OF DISABILITY BY “UNREASONABLE CONDUCT” OF THE EMPLOYEE
§12:60 Statutory Basis
PENALTIES
California Workers’ Compensation 12-2
V. UNREASONABLE DELAY OR REFUSAL IN PROVIDING COMPENSATION
A. General Points
§12:65 Introduction
§12:66 Major Revision of Penalty Statutes by SB 899
§12:67 Effective Date of Revisions
§12:68 Statutory Limit on Penalty Amount
§12:69 Self-Imposed Penalty Upon Discovery by Employer
§12:70 Resolution and Submission of Accrued Penalty Claims
§12:71 Statute of Limitations for Filing Penalties
§12:72 Other Provisions of LC §5814
§12:73 Violations That Constitute General Business Practice
§12:74 Deciphering the Case Law in Light of LC §5814
§12:75 Attorney Fees for Penalty Award
§12:76 Burden of Proof
§12:77 Self-Imposed Penalty Under LC §4650(d)
§12:78 Delays Prior to an Award
§12:79 Liability of CIGA for Penalties
B. Justifiable Delays
§12:80 Pending Medical Review
§12:80.1 Conflicting Medical Evidence
§12:81 Clerical Inadvertence
§12:82 Pending the Filing or Disposition of Review Proceedings
§12:83 Pending Determination of Threshold Issue
§12:84 Pending Determination of Time of Payment or Identity of Payees
§12:85 Withholding Benefits Based on Alleged Overpayment
§12:86 Pending Resolution of Legal Question
§12:87 Financial Inability to Pay Benefit
C. Unjustified Delays
§12:99 Failure to Investigate
§12:100 Failure to Pay Enough
§12:101 Failure to Advance PD
§12:102 Failure to Pay TD
§12:103 Failure to Pay Stipulated Award of Compromise and Release
§12:104 Failure to Pay Death Benefits
§12:105 Failure to Pay Medical-Legal Costs
§12:106 Delay or Refusal to Pay Penalty Award
§12:107 Failure to Provide Medical Treatment
§12:108 Failure to Pay Interest
§12:109 Failure to Pay by Proper Negotiable Instrument
§12:110 Reserved
§12:111 Failure to Pay Lien Claims
§12:112 Failure to Pay Attorney Fees
§12:113 Failure to Pay LC §4650(d) Penalties
§12:114 Failure to Pay §132a Benefits
§12:115 Failure to Pay Statutory Leave of Absence Benefits (LC §4850)
§12:116 Failure to Pay Advance Disability Pension Payments
§12:117 Failure to Provide Supplemental Job Displacement Voucher
D. Multiple Penalties: Separate, Successive Delays
§12:120 Separate and Distinct Delay
§12:121 Compare Single Protracted Delay
E. Computation of the Penalty
§12:130 Statutory Language
§12:131 The Gallamore Case
§12:132 Application to Undelayed Benefits
§12:133 Reser ved
§12:134 No Civil Suit for Carrier/Employer Delay
PENALTIES
12-3 Penalties: Increased and Reduced Compensation on Account of Fault
VI. ILLEGAL EMPLOYMENT OF MINORS
§12:140 Under 16 With False Documents
§12:141 Extent of Penalty
§12:142 Illegal Employment Defined
§12:143 No Application to Public Employment; No Insurance Coverage
VII. UNL AWFUL DISCRIMINATION AGAINST EMPLOYEE FOR INVOLVEMENT IN COMPENSATION CLAIM
A. General Points
§12:150 Introduction
§12:151 Criminal Sanctions
B. Sanctions Available to Employee
§12:160 Increased Compensation
§12:161 Reinstatement
§12:162 Reimbursement of Lost Wages and Work Benefits
C. Employer Discriminatory Acts
§12:170 Discharging or Threatening to Discharge for Filing or
Threatening to File Claim or Receiving Rating, Award, or Settlement
§12:171 Discharging or Discriminating for Testifying or Threatening
to Testify in Another Employee’s Case Before a WCJ
§12:172 Discrimination for Receiving C&R
§12:173 Discrimination for Receiving Rating
§12:174 Discrimination for Refusing to Allow Employee to Use
Accrued Sick Leave to Supplement Temporary Disability
D. Insurer Discriminatory Acts
§12:180 Compelling Employee Discharge for Filing Claim
§12:181 Compelling Employee Discharge for Testimony in Comp Case
E. Other Discriminatory Acts
§12:190 Loss of Seniority Rights
§12:191 Demotion
§12:192 Failure to Correct Employment Records
§12:193 [Reserved]
§12:194 Failure to Issue Safety Incentive Award
§12:195 Not for Filing Third-Party Suit
§12:196 Federal Preemption Issues
§12:197 Employer Refusal to Transfer
§12:198 Refusal to Offer Accommodated Job
§12:199 Diminished Disability Benefits During Contested Compensation Claims
§12:200 Termination or Reduction of Benefits
§12:201 Unjustified Delay in Allowing Return to Work
§12:202 Diminished Income on the Job
§12:203 Refusal to Pay Merit Raise
§12:204 Delay in Providing Treatment
F. Burden of Proof
§12:210 Required Elements of Proof
§12:211 Termination During Industrially-Caused Absence
§12:212 No Termination During TTD W/O “Business Necessities”
§12:213 Refusal to Rehire
§12:214 Justified Termination During TTD
G. “Realities of Doing Business”/“Business Necessities”
§12:220 Fear of Re-Injury
§12:221 Fear of Re-Injur y; Employer Change of Circumstances
§12:222 Substantial Evidence in Support of Employer Fear
§12:223 After the Fact Evidence
§12:224 Other Defenses Based on Business Necessity
§12:225 Application to Prior Employment
§12:226 Violation by Subsequent Employer
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