ADJ13228350 — California WCAB decision

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 misconductApplicant prevailedlegs

The facts that decided it

What the panel treated as outcome-determinative, and which side it favoured.

Defendant reduced the workforce from a two-person job to a one-person job despite the job's hazardous nature requiring crossing an energized conveyor.

Favours Applicant prevailed

This change increased the danger to the employee and was a reckless disregard for safety, supporting the finding of serious and willful misconduct.

From the decision · page 65:7-10.) We further agree that it was a reckless disregard to employee's safety to reduce the workforce from a two-person job to a one-person job, especially when the job required the cleaning and oiling of skids on both sides of the conveyor and because the controls for the conveyor was only located on one side, forcing the employee to cross the conveyor to access the controls. (Report, pp. 8, 9; MOHSOE dated October 22, 2024, pp. 6:47- 7:8; MOHSOE dated December 16, 2024, p. 3:4-11; MOHSOE dated February 24, 2025, pp. 3:39- 4:3.) Accordingly, for these reasons and those set forth in the Report, we deny reconsideration.

Applicant and witnesses credibly testified that the job was dangerous, unsafe, and lacked proper safety training, with consistent complaints to management ignored.

The rules the panel named

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

Labor Code section 4553

Serious and willful misconduct requires knowledge of the dangerous condition, knowledge that serious injury is probable, and deliberate failure to take corrective action.

The Appeals Board applied this standard to find defendant liable for serious and willful misconduct.

From the decision · page 12In order to prove that the employer is guilty of serious and willful misconduct, the employee must show that the employer: (1) knows of the dangerous condition; (2) knows that the probable consequence of its continuance will involve serious injury to the employee; and (3) deliberately fails to take corrective action.

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

Definition of serious and willful misconduct as deliberate, intentional, or wanton conduct with knowledge of danger likely to result.

The Appeals Board relied on this case to define serious and willful misconduct.

From the decision · page 3In the seminal case of Mercer-Fraser Co. v. Industrial Acc. Com. (1953) 40 Cal.2d 102, 117 [18 Cal.Comp.Cases 3], serious and willful conduct is defined as conduct that "necessarily involves deliberate, intentional, or wanton conduct in doing or omitting to perform acts, with knowledge or appreciation of the fact, on the part of the culpable person, that danger is likely to result therefrom." (emphasis in original.) "Wilfulness necessarily involves the performance of a deliberate or intentional act or omission regardless of the consequences." (Ibid.)

Johns-Manville Sales Corp. v. Workers' Compensation Appeals Bd. (Horenberger) (1979) 96 Cal.App.3d 923

An employer guilty of serious and willful misconduct must know of the dangerous condition, know that serious injury is probable, and deliberately fail to take corrective action.

The Appeals Board applied this standard to affirm the finding of serious and willful misconduct.

From the decision · page 4"The basis for serious and wilful 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.' [citation omitted] It follows that an employer guilty of serious and willful misconduct must know of the dangerous condition, 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 923, 933 [44 Cal.Comp.Cases 878] citing Mercer-Fraser, supra, 40 Cal.2d 102; Hawaiian Pineapple Co. v. Ind. Acc. Com.

ADJ13228350 · July 14, 2025

What was disputed, and how it came out

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