It certain circumstances a secondary claim in addition to the workers compensation injury is available under Labor Code Section 4552. This secondary claim is called a Serious and Willful Misconduct claim and would be filed against the employer directly not the insurance company.
Typically such claims are rare and very difficult to prove. Unlike worker’s compensation claims which are no fault, to be successful on a Serious and Willful Misconduct claim, you must be able to prove a knowing violation of a safety order (serious and willful Cal –Osha violation) or reckless behavior by a supervising employee that results in serious injury. It is a higher standard than negligence which is essentially more than merely acting unreasonably. If successful benefits can be increased 50%. Cost are limited and it requires significantly more time and expense by the attorney.
Therefore the percentage charged for this type of claim representation is usually a 25 to 33% contingency. Note this claim must be filed within one year of the date of the injury at the Workers’ Compensation Appeals Board and served on the employer. The employer can bring a similar claim against the employee to reduce benefits if the injury is caused by misconduct of the employee.