WCDefenseCA

So, last time we had discussed that maybe, just maybe, Sasha could argue that she had enough of a defense to avoid Serious and Willful (S&W) liability for the injuries sustained by her window-cleaner employees after they fell from San Francisco sky-scrapers with no safety-equipment except her garage-sale acquired trampolines several floors below.

Then Sasha brought up Cal/OSHA.

California’s Division of Occupational Safety and Health provides various safety regulations for work sites and seeks to have them enforced.  Violating Cal/OSHA regulations, with or without resulting injuries, can lead to fines, stop-work orders, and a whole host of other problems for employers.  This includes possible jail time.

Additionally, Labor Code section 4553.1 provides an alternative method of proving S&W misconduct.   By showing that an employer violated a specific Cal/OSHA safety order which resulted in the injury of the employee, and the employer either knew (or it was obvious that) the conditions at the work site made the order applicable, and that the employer’s failure to correct the condition constituted a reckless disregard for the probable consequences, the employee might prevail on a S&W claim.

But don’t be fooled – this can be harder for an employee to do than it might seem.

Cal/OSHA has tons of rules and it’s hard to follow them all.  Some rules are administrative in nature and relate to record keeping – an employer can easily violate this rule but it’s hard to prove that the failure to keep records of past citations proximately caused an employee’s injury.  In negotiating with Cal/OSHA, an employer might agree to offer no contest to safety order violations that wouldn’t prove up the injury in exchange for a dismissal on safety order violations that might.

In Ford Construction Company v. WCAB (2010, unpublished), an employee sustained injury (and death) when a ripper shank weighing more than 2000 pounds fell from a suspension cable.  Even though the employer had violated various Safety Orders, the Court of Appeal had found that those violations did not justify a finding of S&W misconduct on the part of the employer because it was not the violation of the relevant safety orders that caused the workers’ injury.

However, simply complying with the relevant Safety Orders is not a defense either.  For example, in the case of C.C. Meyers v. WCAB (2012, unpublished), the Court of Appeal concurred with the defendant that it had followed the relevant safety orders with respect to providing back-up sirens on an excavator.  However, even though there was no relevant Cal/OSHA safety order violation, the Court still found S&W misconduct on the part of the employer for failure to provide a spotter in a loud and tight work environment where a back-up siren might not be heard.

For example, Safety Order 1670 requires a personal fall arrest system for workers operating more than 7.5 feet from the ground.   So an employee might show that (1) Sasha violated the order by not providing harnesses; and (2) the failure to provide a harness proximately caused the injury (because of the fall).  However, if Sasha didn’t know about the safety order, the theory might fail under section 4553.1.

What do you think, dear readers?  Did poor Sasha commit serious and willful misconduct by replacing safety harnesses with trampolines and sending her brave and blindly loyal employees to clean the sky-scrapers of San Francisco?

WCDefenseCA URGES its readers and friends to not do what Sasha did – use all possible safety equipment to protect your workers; obey Cal/OSHA Safety Orders; and don’t rely on trampolines to save workers falling from skyscrapers. 

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…

When your humble blogger was still a humble (and starving) law student, he was told that, upon receiving a license, most attorneys involuntarily go into what is known as “F&F Law.”  This was explained as “friends and family law” as the initial slate of clients.

Your humble blogger’s actual friends and family rarely have workers’ compensation defense questions to bring to him, but his imaginary ones always do, as was the case with his cousin’s girlfriend Sasha.

Sasha had started a business in Sacramento, where she hired painters to touch up houses and buildings in all the Northern California area.  Her edge in business?  She saved money by setting up trampolines around the work crews instead of using ropes or harnesses or even rail guards.  In fact, her only safety tool was the array of trampolines around the scaffolding that went up her clients’ buildings.

I asked Sasha if she thought this was dangerous, but she seemed convinced that trampolines would be the best bet of a “safe” workplace – lots of falls but no injuries. In a best-case scenario, the worker would bounce right back to where he or she was working before, and just resume work.  “And if it isn’t,” she said, “that’s what workers’ compensation insurance is for!”

This worked out just fine at first, with the workers either staying on their feet or bouncing to safety.  In fact, the trampolines proved so effective, workers even “practiced” falls during their lunch break, because it was so much fun.  But Sasha’s success was her eventual downfall.

As word spread of her low bills and cheerful workers, her operation expanded to window-washing and wall scrubbing, until she was hired to help clean and repaint some of the best-known sky-scrapers in San Francisco.  Your humble blogger is no physics expert, but he’s pretty sure that at a certain point, the fall is too great for a trampoline to effectively stop.

When one of her workers, April (the applicant) fell from the scaffolding set up around the building, she aimed for the trampoline set up ten stories below, as per her training.  The result was a very unfortunate injury and an application for adjudication of claim.  But the fun didn’t stop there – April also filed a petition for increased benefits, alleging Sasha’s misconduct was serious and willful.

Sasha called me to ask what she should do.  It turns out that, in response to this injury, she took the precaution of double-stacking her trampolines, but that work was continuing.  After I persuaded her to cease work until she had gotten regular safety equipment, including harnesses, I thought I might prep her for what was to come as part of this serious and willful claim.

Her first disappointment was the revelation that workers’ compensation insurance does not cover liability for allegations of serious and willful misconduct (see Insurance Code section 11661).  And the news didn’t get any better from there.

What do you think, dear readers, will she bounce back from this?  Come back on Wednesday for more…

Alright, dear readers, I’ve got an interesting one for you today!  (Not that I don’t always have interesting stuff…)

As we know, Labor Code section 3208.3(h) provides a defense to psychiatric injury allegedly sustained by an employee with an employment history of less than six months with that employer, unless the injury was sudden and extraordinary.  The sudden part is usually a given, but the extraordinary element depends on the nature of the work.

For example, burning one’s hand with an iron while engaged in the dry-cleaning trade is exactly what you would expect to happen, so it’s not extraordinary.   (Bonilla v. WCAB.)  The same can be said of falling off a 24’ ladder while picking avocados.

But, in the recent case of Carlos Torrez v. Sequa Enterprises, the WCJ found, as did the WCAB, that a window-installer falling from a second-floor scaffold is “extraordinary.”

Mr. Torrez was employed installing a window on the second floor of a residential unit, having been employed by Sequa for less than six months, and when scaffolding rocked (apparently it was not tied to the building) he fell between the scaffolding and the building, causing very serious injuries.  It appears that the employer had failed to adopt some of the safety measures used by other scaffold-using businesses.

In resisting the psyche claim, however, the defense raised the issue of 3208.3(h), which shifted the burden back onto the applicant to prove that this was an extraordinary injury.  Well, not content to simply lose out the psyche claim, the applicant’s attorney went on the offensive and found an expert witness to testify that a fall from a second-floor scaffold WAS extraordinary in this business.

Applicant put on a 30-year veteran of the construction industry, who had worked on over 400 projects, 90% of which had involved scaffolding work.  In his opinion, this injury was not one that a person would expect doing this type of work.

The WCAB affirmed – there’s no need for a professional degree or license to qualify as an expert, and it was sufficient that the witness possessed special knowledge of the subject matter (typically to bridge the gap between the fact-finding duty of the WCJ and the facts that are beyond common knowledge).

But recall, if you will, that in the avocado case, the injured worker testified to having picked fruit since he was 17 years old (being 35 at the date of injury), and that between 1992 and 2010, had never fallen off a ladder, nor heard of anyone else doing the same.  In that case, the injured worker’s testimony, which was the functional equivalent of the expert witness testimony in this case, failed to sway the Court of Appeal.

So, dear readers, what should the defense community do to respond to such a situation?  Well, when we’re facing a psyche claim perhaps it should be standard operating procedure to locate an expert witness that will affirmatively prove (if only to negate applicant’s attempt to meet his or her burden) that the event was not extraordinary.

Realistically, the best person to help you with this is going to be the employer, who will likely be familiar with the industry and know someone who is a 30-year veteran or the like.  And it might prove to be worthwhile to go after the extra litigation expense of retaining an expert.  It certainly paid off for applicant in this case.

My dear readers will recall, especially after their first cup of coffee for this morning, that their humble blogger once cracked a proverbial egg of wisdom for their review in the form of a multi-part blog-post on serious and willful misconduct.  Well, that topic has seriously and willful reared its ugly head once more, this time in the form of an (unfortunately) unpublished Court of Appeal decision.

The CoA reversed the holdings of the Workers’ Compensation Appeals Board and the Workers’ Compensation Judge, holding that since “no substantial evidence of knowingly wrongful conduct on the part of [the defendant]” was to be found, the award must be annulled.

The case is that of Jorge Mora v. CLP Resources, Inc.  Jorge Mora was a temp carpenter in the employ of CLP, who was sent out to a job site with a series of safety problems, including a table saw not secured to a table and with no safety guard on the saw.  By the third week, Mr. Mora had attempted to report these safety issues to his temp agency (at least, according to his trial testimony, which appears to be in conflict with his deposition testimony) but was not able to report the specific safety problems.

Prior to his starting the job, a CLP safety inspector had been to the site, but had not noticed anything wrong.

Unfortunately, Mr. Mora lost his balance while working one day and placed his hand on the saw, sustaining cuts to his left hand.

In addition to his workers’ comp claim, the applicant sought increased benefits under Labor Code section 4553, alleging that CLP’s serious and willful misconduct was its willful failure to provide a safe place to work.  At trial, the Workers’ Compensation Judge found that the testimony of a CLP witness as to the inspection of the work site was “questionable” and found that CLP had engaged in serious and willful misconduct when it failed to adequately inspect the jobsite.

In rejecting this finding, the CoA reasoned that 4553 requires the serious and willful misconduct to be on the part of an executive, managing officer, or general superintendent of the corporation.  The CoA found that there was no findings (or evidence to support a finding) that CLP had specific knowledge of a dangerous condition – it’s inspection did not reveal it, and Mr. Mora’s comments were also vague enough so as not to put CLP on notice of the condition.

To sum up – the target in this case was the temp agency that did an inspection of the job site, found nothing wrong, and allowed its employees to go there.  Hypothetically, the temp agency was negligent in how they inspected the site.  And, come on folks, who inspects a factory when it is in “shut down” condition?  Who inspects a construction site employing men using power tools when there are neither men nor power tools on the site at the moment?

That being said, negligence is not serious and willful misconduct.  Remember, all those of you on the applicant side of the room, Labor Code section 4551 would serve to reduce the recovery of almost every single injured worker, as you could make a claim for employee negligence in almost every single workers’ comp claim (lifted with your back instead of your knees? That’s a Negligence.  You weren’t holding the steering wheel at “10 and 2”? That’s a Negligence.  Didn’t sit at your desk with proper posture?  That’s a Negligence.

Now, here’s another fun thought: this is not the case where a worker blindly goes into a dangerous situation intentionally created by an evil employer.  This is a case where a 13-15 year veteran of man’s war on wood (carpentry) was aware of a dangerous situation, knew it was dangerous, and should not have continued to work there.  If CLP didn’t want to hear it, as he claims, he should have declined to willfully and intentionally place himself in harm’s way.

But he didn’t.

He was warned that work was hard to come by and he decided to willfully expose himself to a serious work condition where the likely result was his own harm.

If anything, CLP should have explored turning the Serious and Willful table (carpenters can make tables, right?) back on Mr. Mora.

Now, let’s take a sip of the reality Kool-Aid.  No one will ask Mr. Mora what he did going back to that work place when he knew it was so unsafe, because he will explain “I needed the money” and everyone will understand.

Of course, when that same reason is given by an employer that can’t afford to buy workers’ compensation insurance, it is drowned out in the calls for the employer’s blood.  After all, no one deserves more contempt or hatred in California’s workers’ compensation system than someone who tries to create jobs for his fellow Californians.  (Please note, dear readers, your humble blogger is not advising you to violate the law or operate without workers’ compensation insurance.  He is just commenting on the lack of sympathy a desperate small business owner receives as opposed to a desperate employee.)

Just a thought, dear readers, just a though.

Can Serious and Willful Misconduct be expanded to include the actions of a drunk employee?  Can the theory include allowing an employee to remain at work?

That was the question posed by the recent writ denied case of Sandra Ellefson v. County of Los Angeles.

There, the employer was aware that an employee was drinking at work, and had been dealing with a drinking problem for 17 years.  Applicant had seen his drinking, and complained about abusive behavior (pinching, pushing, pulling her hair, stepping on her toes) to everyone short of Santa Clause, including her own supervisors and Drunky McDrunkerson’s supervisors too.

Things moved swiftly, as they often do in government, and four months later applicant still sat facing Mr. Al Caholic’s desk.

The employer’s witnesses, however, testified that they were only informed of the drinking problem, and not the abuse, and that their efforts were focused on getting the poor guy into treatment (FOR SEVENTEEN YEARS).

Ultimately, while walking around drinking Tequila, Sir Drinkalot tripped, fell on applicant, and caused her chair to break, which then in turn caused her to hit her face on her desk.  After resolving her case-in-chief, applicant also pursued Serious and Willful Misconduct penalties, which the workers’ compensation Judge denied.  While the defense was apparently celebrating their victory at Happy Hour, applicants’ counsel filed a petition for reconsideration.

Generally speaking, your humble blogger disfavors rulings or findings that are adverse to a defendant.  But in this case, I can’t help but side with the Workers’ Compensation Appeals Board in its finding that defendant had committed serious and willful misconduct by ignoring the repeated complaints (remember, dear readers, the County of Los Angeles had been “dealing” with Mr. McCrunk’s drinking at work for 17 years!)

There was, however, a dissent: Commissioner Moresi made the point, as was made by the WCJ, that because of the 17 years without any injury, the employer had no reason to expect any injury to other employees.  Al was just being Al, and there was no reason to connect the dots between a habitually inebriated employee and actual injury (if this bomb hasn’t exploded yet, why would it ever?)

In all fairness, this is a valid point – time had effectively proven Mr. Barfly to be relatively harmless.  But, then again, the day before Thanksgiving, each turkey is more convinced than ever that it is loved and perfectly safe, based solely on the events of the preceding 364 days.  We all know that Thanksgiving is coming sooner or later.  The past 17 years were a windfall for the employer – it had allowed a worker to remain perpetually drunk at his post and had avoided the likely consequences of his inebriation: injury to himself or others.

By the by – does no one care that the County of Los Angeles has had an employee at his post, drunk, for the last 17 years?  The opinion even notes testimony that supervisors had noted unfinished work, clear mistakes, and slurred speech.  And now the good citizens of Los Angeles County get to ask their elected officials why the penalties are being taken out of the budget instead of going to another project.

In any case – if you’re an employer, please, please, please don’t let your employees remain at work drunk.   Send them home, discipline them, fire them, get them into treatment – do whatever.  But don’t expose your employees, your customers, or even your management staff to what could easily happen when a person drinks too much.

Cheers!