What the panel ordered
Petition for reconsideration denied
Petition for reconsideration of Findings and Award Re: Claim of Serious and Willful Misconduct denied
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.
The employer was justified in relying on a mechanic's inspection report that the vehicle was safe to drive, and there was no evidence of willful misconduct by a supervisory person with knowledge of the risk. Applicant did not meet the burden to show serious and willful misconduct under Labor Code section 4553.
From the decision · page 3The second finding of fact, that applicant was not injured by reason of any serious and willful misconduct of the employer defendant, Recess Holdings/First Group, is based on the vehicle inspection report admitted without objection as Defendant's Exhibit II, and applicant's testimony describing that report and her inspection and use of the vehicle that she was driving on the morning of her awarded work injury of August 30, 2015. According to the report, although there was an electrical short in the vehicle the previous day, the mechanic had said the vehicle was "OK TO DRIVE." Applicant and her employer were both equally justified in relying upon this representation in the report in assuming that the vehicle was safe to operate. This assumption proved
The facts that decided it
What the panel treated as outcome-determinative, and which side it favoured.
Vehicle inspection report indicated electrical short but mechanic found vehicle 'OK to drive'
Favours Defendant prevailed
Employer and applicant reasonably relied on mechanic's inspection and report, negating willful misconduct
From the decision · page 3The second finding of fact, that applicant was not injured by reason of any serious and willful misconduct of the employer defendant, Recess Holdings/First Group, is based on the vehicle inspection report admitted without objection as Defendant's Exhibit II, and applicant's testimony describing that report and her inspection and use of the vehicle that she was driving on the morning of her awarded work injury of August 30, 2015. According to the report, although there was an electrical short in the vehicle the previous day, the mechanic had said the vehicle was "OK TO DRIVE." Applicant and her employer were both equally justified in relying upon this representation in the report in assuming that the vehicle was safe to operate. This assumption proved
No evidence that any supervisory person with knowledge of risk was informed or deliberately ignored it
Favours Defendant prevailed
Applicant failed to prove employer's knowledge and deliberate failure to act under Labor Code section 4553
From the decision · page 8However, the Vehicle Inspection Report certainly did record the electrical short in the lift mechanism, and it is assumed that this report was given to someone. The risk had been published without doubt in Ex. II. But the fact remains that there is no evidence that anyone in a supervisorial role under sec. 4553 was informed of the risk.
The rules the panel named
Authorities as the decision cited them, with how this panel applied each one.
California Labor Code section 4553
Labor Code section 4553 requires showing willful or intentional act or failure to act by employer with knowledge that serious injury is probable result
Applicant failed to meet burden to show employer's serious and willful misconduct
From the decision · page 4California Labor Code section 4553 reads as follows:
Mercer-Fraser Co. v. Ind. Acc. Com. (1953) 40 Cal. 2d 102
Serious and willful misconduct means deliberate act or failure to act with knowledge that serious injury is probable, not mere negligence or gross negligence
Applicant's evidence did not show employer's knowledge or deliberate failure to act
From the decision · page 5negligence, or even gross negligence, is not enough to constitute serious and willful misconduct under Labor Code Section 4553 (Mercer-Fraser Co. v. Ind. Acc. Com. (1953) 40 Cal. 2d 102, 120 [18 Cal. Comp. Cases 3, 251 P.2d 955]). Under section 4553, serious and willful misconduct means an act or decision not to act that is deliberate and for the express purpose of injuring another, or intentionally performed either with knowledge that serious injury is a probable result or with a positive, active, wanton, reckless, and absolute disregard of its possibly damaging consequences (Mercer-Fraser, cited supra, at 120; Hawaiian Pineapple Co. v. Ind. Acc. Com. (1953) 40 Cal. 2d 656, 662 [18 Cal. Comp. Cases 94, 255 P.2d 431]). This means that the employer must know of the dangerous condition, know that the probable consequences of its continuance will involve serious injury to the employee, and deliberately fail to take corrective action (Johns-Manville Sales Corp. v. Workers' Comp. Appeals Bd. (Horenberger) (1979) 96 Cal. App. 3d 923, 933 [158 Cal. Rptr. 463, 44 Cal. Comp. Cases 878, 882§ 883]).
What proof carried it
The evidence the panel weighed, by kind.
Vehicle inspection report showing the vehicle was inspected and deemed safe to drive
From the decision · page 3The second finding of fact, that applicant was not injured by reason of any serious and willful misconduct of the employer defendant, Recess Holdings/First Group, is based on the vehicle inspection report admitted without objection as Defendant's Exhibit II, and applicant's testimony describing that report and her inspection and use of the vehicle that she was driving on the morning of her awarded work injury of August 30, 2015. According to the report, although there was an electrical short in the vehicle the previous day, the mechanic had said the vehicle was "OK TO DRIVE." Applicant and her employer were both equally justified in relying upon this representation in the report in assuming that the vehicle was safe to operate. This assumption proved
Applicant's testimony describing inspection and use of the vehicle and lift on the day of injury
From the decision · page 3The second finding of fact, that applicant was not injured by reason of any serious and willful misconduct of the employer defendant, Recess Holdings/First Group, is based on the vehicle inspection report admitted without objection as Defendant's Exhibit II, and applicant's testimony describing that report and her inspection and use of the vehicle that she was driving on the morning of her awarded work injury of August 30, 2015. According to the report, although there was an electrical short in the vehicle the previous day, the mechanic had said the vehicle was "OK TO DRIVE." Applicant and her employer were both equally justified in relying upon this representation in the report in assuming that the vehicle was safe to operate. This assumption proved
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About this page
- A published decision of the California Workers' Compensation Appeals Board, taken apart by what it turned on. The Board publishes the decision itself; this page adds the extraction and quotes the passage behind every claim.
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