When a wall collapses at a work-site, you can be pretty sure that a Serious and Willful Misconduct Petition under Labor Code section 4553 will follow.  However, it appears that a contract or budget dispute may work as a defense to the claim.  That’s what happened in the case of Arnold Farpella (Dec’d) v. R & L Brosamer, Inc.

Applicant was working near a supporting wall for a Cal-Trans contractor when it collapsed.  As he was running away from it, he sustained injury to his left ankle and foot, as well as his right shoulder.  He later sustained a psyche injury in the form of depression.

The matter was settled by way of compromise and release with a Thomas finding, but applicant passed away, and his widow filed a petition for increased benefits under Labor Code section 4553.  The theory was that defendant-employer knew that the wall was unstable and had done nothing to correct the danger posed to the workers, including applicant.

At trial, the evidence essentially showed that the supporting wall was built upon bad soil (running sands), and the wall collapsed from the construction activity around it when the ground beneath it gave way.  Apparently, neither Cal-Trans nor defendant were aware of the condition when the work contract was signed, and upon discovering it the employer was in the process of obtaining approval and funding to address it.

The workers’ compensation Judge found that there was no evidence of serious and willful misconduct – just a poor location for a wall and, at most, negligence.  Applicant’s widow petitioned the Workers’ Compensation Appeals Board for reconsideration, but the WCAB was not persuaded.

The interesting thing in this case was that the contract dispute tipped the balance at least enough to show that there was no intent on the part of the employer.

Serious and willful misconduct is a difficult standard to prove – and rightly so.  The applicant is alleging that the employer committed a borderline criminal act.  Fortunately, the fact that the employer’s hands were tied as to repairing the wall allowed for sanity to prevail.