ADJ10058585 · July 30, 2021

From the decision · page 7What is essential to the legal analyses cited above is that it is the employer that is the party to whom a claim for serious and willful misconduct is brought. As this is applied to the facts in the current case, it is apparent that this requirement is lacking.

From the decision · page 9Applicant contends that defendant violated these safety orders in that the debris at the bottom of the wooden ladder caused more extensive injury than if applicant had landed on level ground.

Favours Defendant prevailed

Lack of control or responsibility means no liability for serious and willful misconduct

From the decision · page 7The fact that Schuff Steel had no role in either the construction or placement of the wooden ladder or in the location of the debris at the bottom of the ladder means that it cannot be held liable due to any link between applicant's injury and a claim for serious and willful misconduct resulting from either the ladder itself or the debris at the bottom of the ladder.

Defendant had no responsibility or control over medical clinic employees who treated applicant at injury site

Favours Defendant prevailed

Actions of medical clinic employees cannot be imputed to defendant for serious and willful misconduct

No medical evidence that applicant's injury worsened due to transportation by private vehicle instead of ambulance

Favours Defendant prevailed

No worsening of injury means no basis for serious and willful misconduct claim on this ground

From the decision · page 8Finally, there is no medical evidence presented that applicant's injury worsened due to the transportation of him by private vehicle. Although Dr. Lessenger stated it was "possible" that there was some worsening, he could not state with reasonable medical probability that applicant`s condition was worsened due to this allegation.

Credible testimony that defendant had no responsibility for debris at ladder base or medical clinic

Favours Defendant prevailed

Supports finding of no violation of safety orders by defendant

Applicant was at Maximum Medical Improvement with 83% Whole Person Impairment; injury was industrial; no valid defense of intoxication; later re-evaluated with 84% WPI; initial first-aid was inappropriate but did not worsen injury with reasonable medical probability; applicant able to work full duty later.

From the decision · page 4Due to dispute over injury AOE/COE and the defense of intoxication, the parties selected James Lessenger, M.D. to serve as Panel Qualified Medical Evaluator (PQME). Dr. Lessenger first evaluated applicant on December 16, 2015. In his report of that date, Dr. Lessenger concluded that applicant was at Maximum Medical Improvement Status (MMI) with an overall level of impairment of 83% Whole Person Impairment (WPI). According to Dr. Lessenger, the injury was industrial and there was no valid defense of intoxication. Applicant was precluded from full duty (Joint Exhibit 105, report of James Lessenger, M.D., dated 12/16/2015).

California Labor Code

Labor Code Section 4553

Defines serious and willful misconduct and conditions for increased compensation

California Supreme Court

Mercer-Fraser Co. v. Industrial Accident Com. (1953) 40 Cal.2d 102

Defines serious and willful misconduct as deliberate or reckless conduct likely to cause injury

From the decision · page 6In the seminal case of Mercer-Fraser Co. v. Industrial Accident Com. (1953) 40 Cal.2d 102, serious and willful misconduct is defined as conduct that "necessarily involves deliberate, intentional or wanton conduct in doing or omitting to perform acts, with the knowledge or appreciation of the fact, on the part of the culpable person, that danger is likely to result therefrom". "Wilfulness necessarily involves the performance of a deliberate act or intentional act or omission regardless of the consequences" (Mercer-Fraser, supra at 117)

California Court of Appeal

Johns-Manville Sales Corp. v. Workers' Compensation Appeals Bd. (1979) 96 Cal App.3d 932

Summarizes basis for serious and willful misconduct including deliberate acts and reckless disregard

From the decision · page 7The basis for serious and willful misconduct has been aptly summarized as including three alternatives: "(a) a deliberate act for the purpose of injuring another; (b) an intentional act with knowledge that serious injury is a probable result; or (c ) an intentional act with a positive and reckless disregard of its possible consequences. It follows that an employer guilty of serious and willful misconduct must know of the dangerous condition, knowthat [know that] the probable consequences of its continuance will involve serious injury to an employee, and deliberately fail to take corrective action" (Johns-Manville Sales Corp. v. Workers' Compensation Appeals Bd (Horenberger)(1979) 96 Cal App.3d 932, 933 [44 Cal Comp Cases 878] citing Mercer-Fraser, supra; Hawaiian Pineapple Co. v. Ind. Acc. Com. (1953) 40 Cal2d 656; Dowden v. Industrial Acc. Com. (1963) 223 Cal.App.2d 124, 130-131)

California Labor Code

Labor Code Section 4553.1

Requirements for proving serious and willful misconduct based on safety order violations

California Court of Appeal

Bigge Crane & Rigging Co. v. Workers Comp Appeals Bd. (2010) 188 CalApp.4th 1330

Standard of conduct required to prove serious and willful misconduct by employer

From the decision · page 7In considering the actions of the two employees for Schuff Steel, even gross negligence is not enough to establish liability; the conduct must be "quasi-criminal" in nature (Bigge Crane & Rigging Co. v. Workers Comp Appeals Bd. (2010) 188 CalApp.4th 1330,1348-1354 [75 Cal Comp Cases 1089]) This standard of conduct required to prove Serious and Willful Misconduct by the employer is the same, whether the claim is based upon Labor Code Section 4553 or upon violation of a safety order under Labor Code Section 4553.1 (Bigge, supra at 1355 citing Grason Electric Co. v. Industrial Acc. Com. (1965) 238 CalApp2d 46, 50-51 [30 Cal Comp Cases 363].

WCJ's credibility determinations given great weight due to opportunity to observe witness demeanor; no substantial evidence to reject credibility

From the decision · page 1We have given the WCJ's credibility determinations great weight because the WCJ had the opportunity to observe the demeanor of the witnesses. (Garza v. Workmen's Comp. Appeals Bd. (1970) 3 Cal.3d 312, 318-319 [35 Cal.Comp.Cases 500].) Furthermore, we conclude there is no evidence of considerable substantiality that would warrant rejecting the WCJ's credibility determinations. (Id.)