What the panel ordered
Petition for Reconsideration granted; final decision deferred pending further review of merits and entire record.
Applicant sought reconsideration of the WCJ's Findings and Order granting defendant's Petition for Credit; the WCAB granted reconsideration and deferred final decision pending further review.
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 WCJ found employer's concurrent negligence was not greater than de minimis, thus defendant entitled to credit. The WCAB granted reconsideration for further review but did not overturn this finding yet.
From the decision · page 6The WCJ notes that it would not have been possible for LAUSD to alleviate the danger if the manner in which that occurs is actual repairs to the property because that is the responsibility of the City of Los Alamitos. While LAUSD did report the damaged area to the City of Los Alamitos well in advance of the date of injury, they did not provide a warning to their employees. However, following review of the evidence, including the condition of the property on the date of injury, as well as testimony, any concurrent negligence on the part of LAUSD is not to a degree greater than a de minimis amount.
The facts that decided it
What the panel treated as outcome-determinative, and which side it favoured.
Employer reported the sidewalk defect to City of Los Alamitos well in advance of injury but did not warn employees.
Favours Defendant prevailed
Employer's failure to warn employees was considered but found not to be greater than de minimis negligence, allowing credit.
From the decision · page 6The WCJ notes that it would not have been possible for LAUSD to alleviate the danger if the manner in which that occurs is actual repairs to the property because that is the responsibility of the City of Los Alamitos. While LAUSD did report the damaged area to the City of Los Alamitos well in advance of the date of injury, they did not provide a warning to their employees. However, following review of the evidence, including the condition of the property on the date of injury, as well as testimony, any concurrent negligence on the part of LAUSD is not to a degree greater than a de minimis amount.
City of Los Alamitos was responsible for repair and failed to fix the sidewalk defect for over two years after notice.
Favours neutral
City's failure established third party negligence; employer's credit depends on concurrent negligence degree.
From the decision · page 6broken sidewalk until two years after receiving notice of the defect from LAUSD in 2019 and one year after applicant's slip and fall; thus the City of Los Alamitos failed to maintain safe premises. As discussed, where the employer LAUSD could be found liable for negligence is in their failure to alleviate the danger or to give an adequate warning in order to prevent injury to employees, the employer, and for purposes of the credit determination, must, as a matter of law, be found concurrently negligent to a degree greater than a de minimis amount.
The rules the panel named
Authorities as the decision cited them, with how this panel applied each one.
Labor Code section 3861
Labor Code section 3861 requires the Appeals Board to allow a credit to the employer for third party settlements unless employer's concurrent negligence bars the credit.
Applied to determine entitlement to credit based on employer negligence.
From the decision · page 6Section 3861 requires the Appeals Board to "allow, as a credit to the employer to be applied
Associated Construction & Engineering Co. v. W.C.A.B. (Cole) (1978) 150 Cal. Rptr. 888
The Board must determine the degree of fault of the employer and total damages to employee to allocate credit appropriately.
Applied to analyze employer's concurrent negligence and credit entitlement.
From the decision · page 4As stated in the Court's opinion in Cole, "When the issue of the employer's concurrent negligence arises in the context of his credit claim based on a third party settlement, the board must determine the appropriate contribution of the employer since the employee's recovery does not represent a judicial determination of tort damages. Specifically, the board must determine (1) the degree of fault of the employer, and (2) the total damages to which the employee is entitled." Associated Construction & Engineering Co. v. W.C.A.B. (Cole) (1978) 150 Cal. Rptr. 888, 869; 43 Cal.Comp.Cases 1333.
Bonner v. Workers' Comp Appeals Bd. (1990) 225 Cal.App.3d 1023
Where employer has knowledge of a dangerous condition caused by third party and fails to warn or alleviate, employer is concurrently negligent greater than de minimis as a matter of law.
Applied to assess employer's negligence degree for credit determination.
From the decision · page 5concurrently negligent to a degree greater than a de minimis amount. Bonner v. Workers' Comp Appeals Bd. (1990) 225 Cal.App.3d 1023, 1037, 55 Cal.Comp.Cases 470.
What proof carried it
The evidence the panel weighed, by kind.
Testimony of applicant and witnesses from City of Los Alamitos and LAUSD regarding notice and repair delay of sidewalk defect.
The same issues, filtered across the whole corpus — or paste your own facts and let the search rank by factor match.
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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