ADJ11080016 · July 21, 2023

The evidence did not show that the employer or its representatives had actual knowledge of a safety order violation or that the conditions posed a probable risk of serious injury with reckless disregard. The classroom size and occupancy were within contractual limits, and the cited regulations were construction codes, not safety orders. The employer's conduct did not rise to the level of serious and willful misconduct.

From the decision · page 1applicant seeks reconsideration of the May 9, 2023 Findings and Order, wherein the workers' compensation administrative law judge (WCJ) found that applicant's injuries were not caused by the serious and willful misconduct of her employer.

Employer witnesses had no knowledge that the classroom violated any safety order.

Favours Defendant prevailed

Lack of knowledge negates the element of serious and willful misconduct under Labor Code section 4553.

The classroom size and occupancy were within contractual limits and approved building codes.

Favours Defendant prevailed

This shows no violation of safety orders that could support serious and willful misconduct.

From the decision · page 2First, it is not clear that the cited maximum number of occupants and minimum square footage are applicable here. Applicant's classroom was built in 1977 (see Applicant Exhibit 14, p. CVU000014) and it is unclear whether the cited sections of the California Building Code and California Code of Regulations are applicable to a classroom built in 1977. Furthermore, Tim McCabe, Director of Planning and Construction at Conejo Valley Unified School District, testified at trial that the school district's architect indicated that the culinary arts/food classroom is considered a regular classroom with an occupancy allotment of 1 student per every 20 square feet, allowing 48 students in the classroom. (Minutes of Hearing/Summary of Evidence (MOH/SOE) dated March 30, 2022, pp. 5:24-6:4.)

No evidence that the cited building codes are safety orders under Labor Code section 4553.1.

Favours Defendant prevailed

Without a safety order violation, serious and willful misconduct cannot be established.

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

Labor Code section 4553 and 4553.1 require proof of actual knowledge of a dangerous condition and reckless disregard for safety to establish serious and willful misconduct.

The court applied this standard to find no evidence of serious and willful misconduct by the employer.

From the decision · page 2"It must be recognized at the outset that the statute in question does not make the employer an insurer of safety and that it does not authorize the additional award upon a showing of mere negligence, or even of gross negligence. Under the provisions of section 4553 the awards of increased benefits can be sustained only if the employes [sic] were `injured by reason of the serious and wilful misconduct' (italics added) of the employer, and where, as here, the employer is a corporation, such misconduct must be `on the part of an executive, managing officer, or general superintendent' of the employer corporation." (Mercer-Fraser Co. v. Industrial Acci. Com., (1953) 40 Cal.2d 102, 108 [18 Cal. Comp. Cases 3].)

Testimony of employer witnesses indicating no knowledge of safety order violations.

Emails from applicant showing concerns about class size and special education students but not physical overcrowding hazards.

From the decision · page 4The many electronic correspondence between applicant and school personnel prior to her accident mainly show applicant's concern about safety surrounding special education students and the burden on her to have new students added mid-semester. (Applicant Exhibits 6-13 and 15, dated January 25-27, 2017 and February 10-28, 2017, and March 14, 2017.) They do not necessarily paint a picture of physical overcrowding, although it is evident that applicant was concerned about the number of students in her class.