California WCABPanel decision

ADJ10058585 · July 30, 2021

Petition for Reconsideration denied.

Issues decided: 2
Medical opinions weighed: 1
Authorities named: 5
District office: Oakland

What the panel ordered

Petition for Reconsideration denied.

Petition for Reconsideration filed May 29, 2021, seeking reconsideration of Finding of Fact that defendant's actions did not rise to Serious & Willful Misconduct; WCJ report adopted and incorporated; Petition denied.

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What was disputed, and how it came out

Each issue the panel decided, with the reasoning it gave. An outcome is what this panel did on this record — not a rule, and not a prediction.

Serious and willful misconductDefendant prevailedlumbar spine · bilateral ankles

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.

Other disputed issueDefendant prevailedlumbar spine · bilateral ankles

From the decision · page 9

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The rules the panel named

Authorities as the decision cited them, with how this panel applied each one.

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].

ADJ10058585 · July 30, 2021

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