ADJ10895307 — California WCAB decision

What the panel ordered

Petition for Reconsideration denied

Petition for Reconsideration filed by Applicant after WCJ denied serious and willful claim

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 prevailedneck · back · bilateral upper extremities · bilateral lower extremities · psyche · sleep · Parkinson's · ENT · respiratory · TMJ

Applicant failed to prove employer knew of a dangerous condition, knew the probable consequence would cause serious injury, and deliberately failed to take corrective action; evidence included lack of relevant OSHA violations, applicant's failure to notify owner, and contradictory Injury and Illness Prevention Program records.

From the decision · page 3Dates of Injury: 09/30/2016 Age on DOI: 57 Parts of Body Claimed Injured: neck, back, bilateral upper extremities, bilateral lower extremities, psyche, sleep, Parkinson's, ENT, respiratory, TMJ Identity of Petitioner: Applicant, in Pro Per Timeliness: The petition was timely filed and served on February 18, 2022. Verification: The petition was verified. Date of Finding of Fact: February 3, 2022. Petitioners Contentions: Petitioner contends that (1) he met the burden of proof to establish the elements of a serious and willful claim, (2) additional documents should be admitted into the record, and (3) the undersigned omitted documents from evidence.

The facts that decided it

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

OSHA violations cited by applicant predate applicant's employment and do not relate to respiratory protection claim

Favours Defendant prevailed

These violations do not support the claim of a dangerous condition relevant to the serious and willful claim elements.

From the decision · page 7The applicant must show that the employer knows of the dangerous condition. Based on the deposition of the applicant and Amended Petition for Serious and Willful, the undersigned can ascertain that the lack of respiratory protection and working in a tight space with chemicals is the serious and willful conduct of the employer. To establish this, the applicant relies heavily on the OSHA violations (exhibit 2). A review of these violations show that they all predate the applicant's employment by approximately six years. Next, the OSHA violations relate to a paint booth without a permit, equipment that is not guarded, electrical panels that were improperly exposed, uncharged fire extinguishers, uncertified forklifts operators, and other non-respiratory violations (exhibit 2, page 1). None of these conditions pertain to or add to the injury alleged by the applicant in the Petition for Serious Willful. Simply put, none of these violations are connected to applicant's cause of action of improper respiratory protection. In addition to the OSHA violations, the applicant states he told "Octavio" of the working condition and no action was taken.

Applicant did not inform company owner of respiratory protection concerns despite multiple opportunities

Favours Defendant prevailed

Employer cannot be found to have deliberately failed to take corrective action if unaware of the issue.

Applicant signed Injury and Illness Prevention Program records denying knowledge of workplace hazards

Favours Defendant prevailed

Contradicts applicant's claim of dangerous working conditions, undermining proof of employer knowledge.

The rules the panel named

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

Labor Code 4553

Labor Code 4553 penalty for serious and willful misconduct

Applicant must prove employer knew of dangerous condition, knew probable consequence would cause serious injury, and deliberately failed to take corrective action.

From the decision · page 6The applicant alleges serious and willful misconduct by the employer under Labor Code § 4553 which states the following:

Mercer-Fraser Co. v. IAC (Soden) (1953) 18 CCC 3, 11-13

Definition of serious and willful misconduct as conduct involving actual knowledge or wanton and reckless disregard of consequences

Serious and willful misconduct requires more than negligence; it requires actual knowledge or equivalent and conscious failure to act.

From the decision · page 6The term 'serious and wilful misconduct' is described... as being something 'much more than mere negligence, or even gross or culpable negligence' and as involving 'conduct of a quasi criminal nature, the intentional doing of something either with the knowledge that it is likely to result in serious injury, or with a wanton and reckless disregard of its possible consequences.'... The mere failure to perform a statutory duty is not, alone, willful misconduct. It amounts only to simple negligence. To constitute 'wilful misconduct' there must be actual knowledge, or that which in the law is esteemed to be the equivalent of actual knowledge, of the peril to be apprehended from the failure to act, coupled with a conscious failure to act to the end of averting injury..." See Mercer- Fraser Co. v. IAC (Soden) (1953) 18 CCC 3, 11-13.

Johns-Manville Sales Corp. v. WCAB (Horenberger) (1979) 44 CCC 878, 883

Burden of proof for serious and willful claim elements

Applicant has the burden to show employer knew of dangerous condition, knew probable consequence, and deliberately failed to act.

From the decision · page 6Therefore, in order to prevail on a serious and willful claim, the burden of proof falls on the applicant who 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. Johns-Manville Sales Corp. v. WCAB (Horenberger) (1979) 44 CCC 878, 883. Each element will be discussed separately but the applicant must show the employer affirmatively and deliberately put the applicant into harm's way.

ADJ10895307 · April 19, 2022

What the panel ordered

What was disputed, and how it came out

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The facts that decided it

The rules the panel named

What proof carried it

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