I have a workers comp case going to trial.I have an additional serious and willful claim supported by a cal-osha serious violation.Can I have both lawsuits at the same or is it one or the other?
1 Answer from Attorneys
PUrsuing benefits before the Workers Compensation Appeals Board DOES NOT preclude one from asserting OSHA violations before Cal-Osha.
If the S&W Petition is listed as one of the issues to be decided by the WCAB Judge at trial, then the issue of whether the employer's behavior was SErious & Willful Misconduct will be decided by the WCAB at Trial.
SOMETIMES the judge asks the attorneys just to try the Permanent Disability and Apportionment in the trial, then after the decision issues they are supposed to spend a few weeks attempting to settle the penalties like S&W.
The S&W penalty is based (in part) on the award of Permanent Disability... a S&W penalty is 50% of the Permanent Disability, so often the finding of Permanent Disability by the judge 'sets' what the S&W penalty would be if tried, and the judge doesn't have to hear hours and days of testimony on the S&W issues.
BUT if you and your attorney insisted on trying all issues at this trial, the S&W evidence and claim could be presented at this upcoming trial.
If there is a separate action with Cal-Osha against the employer, that is a difference administrative agency which will hear different evidence and assess different fines.
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