Category Archives: Serious and Willful

Serious and Willful Misconduct Filed by Tommy Jenkins

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You remember Tommy Jenkins, don’t you?  He was your classmate in eighth grade who used to brag about how fast he could run.  When you didn’t believe that he was the fastest kid in school, he offered to prove it by pinching the neighborhood dog and outrunning him to the safety of the tree house.  Naturally, when Tommy got a cramp from all the candy he had been eating and ended up being bitten by the dog, he blamed you for putting him in the situation…

Tommy grew up and tried out for the Los Angeles Fire Department.  In the case of Michelle Mapstead v. Workers’ Compensation Appeals Board (writ denied), applicant filed a claim against the City of Los Angeles for her injuries sustained while involved in a firefighter training course.

Apparently she fell during an “up and over” exercise drill, sustaining injury to her back, chest, and respiratory system.  Although her case-in-chief settled, she continued to press her Serious and Willful claim against the City.

Serious and Willful misconduct, government primarily by Labor Code sections 4553 and 4553.1, requires the meeting of a fairly high standard for an applicant to meet in order to increase the amount of applicant’s recovery by 50%.  Basically, the employee needs to prove that the conduct of the employer, manager, or supervisor amounted to “an intentional act or an intentional failure to act, either with knowledge that serious injury is a probable result, or with a positive and active disregard for the consequences.”  (Johns-Manville Sales Corp. v. Workers’ Comp. Appeals Board)

Evidence presented at trial reflects that applicant had qualified for the firefighter program in 1994, but was put on the wait-list due to a hiring freeze.  She stopped keeping herself in that level of physical fitness about a year later, already giving up hope of ever being admitted into the program.  In 1998 she was offered enrollment into the program and she happily accepted, beginning the rigorous training program.

On the day of her injury, she was engaged in various drills, including the “up and over” drill.  As the various drills continued, she began to grow tired and feel weakness in her hands, although she kept this fact to herself and didn’t tell her supervisors.  Eventually, while climbing a 70-foot ladder as part of the drill, she fell and sustained her injury.

Her theory on the serious and willful claim, which probably had just enough merit to it to avoid a countersuit for malicious prosecution, was that the screening tests (like the one she passed in 1994) were inaccurate and that the Fire Department staff didn’t properly observe her to note her fatigue.

The workers’ compensation Judge, the WCAB, and the Court of Appeal all sided with the defense, reasoning that the conduct of the defendant was not malicious or reckless or intended to cause harm.  Applicant simply could not make the cut – she had done the same drill 18 times before, but was worn out by a mixture of other drills.

But let’s look at the other side of the argument.  Your humble blogger recognizes that as an attorney, his work does not often have the effect of life-and-death (there are rare moments when my expertise is sought to resolve knife-fights based on confusing Law and Order episodes, however).  But this is not the case for a firefighter – citizens depend on firefighters to protect their lives and property.  Firefighters depend on each other to get in effectively and get out safety.

Applicant failed to keep herself in proper physical shape to perform the job.  She failed to disclosure the physical limitations that developed between her physical screening and her entry into the academy.  She concealed her growing fatigue from her fellow trainees and instructors.

Had she, by some cruel twist of fate, become an active firefighter, who knows the lives and, of lesser importance, property that could have been lost through her unwillingness to communicate her limitations to her fellow firefighters.  And, after all this, she has the nerve to accuse the defendant of serious and willful misconduct.  Tommy Jenkins, alive and kicking.

On Confusing Serious and Willful With Generic Workers’ Compensation

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In California’s Workers’ Compensation system, the standard to establish compensability is fairly low — if you got hurt at work, or your injury is the type that could occur at work, you will likely be compensated.  Most of the fighting in workers’ compensation is really over how much compensation – the deck is usually stacked against the employer from the start of the process.

In this way, the burden placed upon the applicant in the workers’ compensation arena is lower than the negligence requirements placed upon a tort plaintiff.

But a claim for additional compensation for serious and willful misconduct presents a much higher standard (Labor Code § 4553).  In the writ denied case of Flores v. Workers’ Compensation Appeals Board (2011 Cal. Wrk. Comp. Lexis 138), applicant’s efforts to recover under § 4553 did not carry this higher burden.

Flores was a lead mechanic in a tomato cannery and was summoned to the scene of a low pressure steam line that had separated when a clamp came loose.  Ignoring the company safety protocols regarding calling a supervisor to turn off the pipe and giving time for it to cool, Flores went diligently to his repair work until a burst of steam burned his leg.

The theory in this case, which applicant stood firm with all the way to the Court of Appeal, was that his past suggestions, that double bolt clamps be used instead of butterfly clamps to bind steam lines, satisfied the “notice” and “reckless disregard” requirements of § 4553, was rejected by all three courts.  Further testimony showed that butterfly clamps were, in fact, factory recommended for low-steam pipes.

Labor Code § 4553 sets out a relatively higher standard for prevailing on a serious and willful claim, and rightly so.  To justify the conduct that § 4553 seeks to punish and discourage, an employer or its agent would almost have to try or intend to get the applicant injured.

All that happened in this case was what the workers’ compensation system was designed for – Mr. Flores sustained an injury in the course of his duties, and he was compensated generously appropriately.

Fortunately for the tomato canning industry, the Workers’ Compensation Judge, the Workers’ Compensation Appeals Board, and the Court of Appeal all agreed on this last point.