What the panel ordered
Prior Findings and Order of August 30, 2022 rescinded; matter remanded to WCJ for further proceedings consistent with this opinion.
Petition for reconsideration granted; decision after reconsideration issued rescinding prior Findings and Order and remanding for further proceedings.
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 Appeals Board found that Victor Ortega was a managing representative under section 4553.1, contrary to the WCJ's prior finding, and remanded for further development on whether the removal of the guard was a proximate cause of injury, which could establish serious and willful misconduct.
From the decision · page 1Applicant sought reconsideration of the August 30, 2022 Findings and Order ("F&O"), wherein the workers' compensation administrative law judge (WCJ) concluded that defendant employer did not engage in serious and willful misconduct under Labor Code sections 4553 and 4553.1.2 Applicant contends the WCJ erred because the evidence establishes that (1) Victor Ortega was a managing representative under the meaning of section 4553.1, and (2) applicant established violations of two separate safety orders pursuant to that same code section.
The facts that decided it
What the panel treated as outcome-determinative, and which side it favoured.
Victor Ortega was a managing representative of Palm Desert Doors and Hardware under Labor Code section 4553.
Favours Applicant prevailed
This finding reversed the WCJ's prior conclusion and was key to remanding the case for further analysis of serious and willful misconduct liability.
From the decision · page 15To summarize, we believe that Ortega was a managing representative, and that more development of the record may be required on the question of whether the removal of the guard was a proximate cause of applicant's injury. If the removal of the guard was a proximate cause of applicant's injury, it appears that the requirements of section 4553.1 would be met, because the testimony amply established that Ortega removed the guard despite knowing that doing so violated a Cal/OSHA safety order. Similarly, although the WCJ found that the violation of safety order related to the use of gloves was a proximate cause of applicant's injury, the WCJ did not fully analyze liability under section 4553.1 on that basis because of the erroneous conclusion that Ortega was not a managing representative.
The rules the panel named
Authorities as the decision cited them, with how this panel applied each one.
Labor Code section 4553.1
The requirements for finding serious and willful misconduct based on violation of a safety order include: (1) specific manner of violation, (2) proximate cause of injury, and (3) knowledge or obviousness of the condition and reckless disregard by employer or representative.
Applied to analyze the safety order violations and employer liability under section 4553.1.
From the decision · page 9Where a finding of serious and willful misconduct is based upon violation of a safety order, the findings must include: (1) the specific manner in which the order was violated, (2) the specific manner in which the violation of the safety order proximately caused the injury or death, and (3) that the safety order, and the conditions making the order applicable, were known to and violated by the employer or its representative, or that the condition was obvious and that the failure of the employer or representative to correct the condition constituted a reckless disregard for the probable consequences. (Lab. Code, § 4553.1.)
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About this page
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