Sasha was in a tough spot: her own personal trampoline, the workers’ compensation policy, was too small to cover her fall from employer grace – being stuck with a Serious and Willful Misconduct allegation.
Your typical California employer closes off workers’ compensation liability by opening up its checkbook – by forking over a chuck of change every year or every six months, the employers keeps on employing, and injuries get referred to the workers’ compensation insurer. And that’s what Sasha did – her workers had no fall-related injuries, but there were still injured backs from lifting paint cans and twisted ankles from climbing ladders.
But, workers’ compensation insurance does not cover everything. This includes discrimination and retaliation against workers for having filed a claim. Workers’ Compensation coverage also excludes allegations of serious and willful misconduct by an employer (see Insurance Code section 11661).
Time to File and Maximum Recovery
So, let’s start with the basics on serious and willful misconduct (S&W for short). S&W actions must be commenced within a year from the date of injury (see Labor Code section 5407) and can fetch the employee a 50% increase in the benefits paid (see Labor Code section 4553). Mind you, dear readers, that 50% increase is on the whole package of benefits, not just the permanent disability indemnity. (Ferguson v. WCAB (1995) “an award for increased compensation due to the serious and willful misconduct of an employer under section 4553 must be calculated … to include medical treatment payments, medical-legal fees and vocational rehabilitation costs, as well as all indemnity benefit payments.”)
That means, dear readers, if your chosen workers’ compensation insurer is known for generously handing out the benefits as your experience modification inflates, so too inflates your liability for serious and willful misconduct. In considering an insurer, your humble blogger suggests you explore hard-nosed fighters rather than jelly-fish piñatas.
No Conduct by Fellow Employee – Must be an Employer Representative
The Misconduct has to be on the part of the employer, a managing representative, a partner, or a general superintendent – basically, someone high up with the employer’s authority to direct workers’ activities. (Section 4553). Excluded from this is a fellow employee.
So, in the case of Bigge Crane & Rigging Co. v. WCAB (Paul Hunt) (2010), an employee was injured when a crane operator made a mistake in disassembling a crane at a construction site, and a load fell on the employee’s foot. In rejecting Mr. Hunt’s efforts to secure additional benefits through a S&W action, the Court of Appeal reasoned that the employee dismantling the crane was not an officer or executive or anyone else with any real authority vested in him by the employer – just another employee performing specialized work (crane dismantling) instead of unspecialized work (just lending a helping hand).
Type of Conduct
But what is S&W? Serious and willful misconduct, is given form by the Labor Code (see Sections 4550-4558), but is defined by case-law. As early as 1953, the Supreme Court had fleshed out the term to mean “an act deliberately done for the express purpose of injuring another, or intentionally performed either with knowledge that serious injury is a probable result” or by having total disregard that damaging consequences might occur. (See Mercer-Fraser Company v. Industrial Accident Commission (1953)).
In Mercer-Fraser, the Supreme Court specifically held that a finding of negligence, or even gross negligence, meant that there could not be a finding of serious and willful misconduct. So, Sasha’s best bet was to show that she had merely been negligence (or grossly negligent) in planning to prevent worker injuries after sky-scraper falls with the use of trampolines. (Easy enough to do, no?)
To prove that the employer engaged in S&W misconduct, the employee can show (1) the employer knew that there was a dangerous practice going on; and (2) the employer knew that the practice was dangerous. In Rogers Materials Co. v. Ind. Acc. Com. (1956), the employer had warned its employee not to clean a mixer drum from a cement mixer truck while it was moving, but he did so anyway (repeatedly), and his pant leg got caught on a moving part, resulting in him being thrown from the truck and sustaining injury to his back and leg. The reason for cleaning a moving drum was to prevent the cement inside from drying and hardening, which would then require applicant to climb inside the drum and chip away the cement with a hammer!
In affirming the finding of Serious and Willful misconduct on the part of the employer, the Supreme Court reasoned that concern for injury or a warning against certain conduct was not enough, because the employer had “either acquiesced in the practice or impliedly consented to it. The fact that [the employee] was not specifically ordered to wash the drum while it was rotating cannot shield the employer from liability.”
But in Sasha’s case, she had gone a step further – she had specifically trained her employees to dive for the trampolines when they fell.
I explained the law in this way to Sasha, but she did not seem concerned. “So I’m in the clear, right? After all, I wasn’t trying to hurt any of my workers, and I did provide them with the best trampolines available for free at garage sales that I could find. I even trained them in the art of trampoline diving so that work would be both safe and fun!”
Well, if Sasha was here typical sweet and kind self at trial, the workers’ compensation Judge could be persuaded that she intended her workers no harm, and that she had, in fact, tried to take corrective measures against their falls. It’s not like she was sending them up without the trampolines – she had made some effort to avoid injury to the workers.
And, to her credit, her method had worked – it was not until she started tackling San Francisco’s sky-scrapers that injuries started occurring, so perhaps she was just negligent, or grossly negligent, in her misconduct? (It’s a hypothetical folks… work with me here!)
That’s when Sasha asked me what “Cal/OSHA” was and why they were sending her letters demanding to inspect her business…