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The majority of workers’ compensation trials these days seem to deal with injuries to the spine and how to accurately rate that impairment. But occasionally, an outlier issue comes along, that stumps the practitioner, and often throws a monkey wrench into their litigation game plan. One such issue is how to deal with a claim of the applicant of serious and willful (S&W) misconduct by the employer.
Labor Code Section 4553 provides in part:
“The amount of compensation otherwise recoverable shall be increased one-half… where the employee is injured by reason of the serious and willful misconduct… of any of the following: (a) The employer…”
I. Workers’ Comp Insurance Does Not Cover S&W Claims
Insurance Code Section 11661 provides that an employer cannot purchase insurance to cover financial liability for a Labor Code Section 4553 increase in payment. However, the employer may purchase insurance to defend against such a lawsuit. Therefore, it is possible that the defense attorney in the underlying workers’ compensation case may also serve as the defense attorney in a Labor Code Section 4553 allegation, but that is not always the case.
> Defense attorneys must be mindful as to how this discrepancy in coverage may be confusing to clients. If an “S&W” claim is made, the attorney must make certain that the client understands which attorney is representing them on the workers’ compensation claim and which attorney (if any) is representing them on the S&W claim. (See also Coldiron v. Compuware Corp (2002) 67 Cal. Comp. Cases 289 (Appeals Board en banc decision) (Coldiron I) and 67 Cal. Comp. Cases 1466 (Appeals Board en banc decision) (Coldiron II). Also note 8 Cal. Code Reg. § 10550, which mandates that all parties shall identify the “full legal name” of their client. Failure to provide this information may result in sanctions pursuant to 8 Cal. Code Reg. § 10561.5 and Labor Code § 5813, as is true for all intentional violations of the rules of the court administrator.)
> The client should always be made aware that S&W claims are not covered by the customary workers’ compensation insurance policies. Often, the employer will need to hire a separate attorney from their workers’ compensation attorney to handle their S&W claim.
> Applicant attorneys should also determine which attorney is covering the S&W claim to ensure proper service of all documents in order to avoid any possible violations of due process, and ultimately sanctions for that violation.
II. What Is a Serious & Willful Violation?
One of the landmark cases defining what constitutes “serious and willful” misconduct was the case of Johns-Manville Sales Corp v. Workers’ Comp. Appeals Bd. (Horenberger) (1979) 96 Cal. App. 3d 923, 158 Cal. Rptr. 463, 44 Cal. Comp. Cases 878. In that case, the employer was charged with serious and willful misconduct by not providing adequate lighting in a truck yard, which resulted in a slip and fall accident of the employee.
The Second District Court of Appeal (DCA) in Horenberger defined serious and willful misconduct as follows:
“It follows that an employer guilty of serious and willful misconduct must know of the dangerous condition, know that the probable consequences of its continuance will involve serious injury to an employee, and deliberately fail to take corrective action.”
The court emphasized that negligence will not suffice to meet this standard, but must also include an “element of malice, recklessness, or indifference to human safety.” In fact, the conduct must qualify as “quasi-criminal” in order to justify an award increase in compensation per Labor Code Section 4553.
The court in Horenberger concluded “that failure to furnish sufficient lighting in the truck yard and thereby eliminate the known hazard of trip-and-fall, amounted to nothing more than simple negligence…” Therefore, the finding of serious and willful misconduct by the lower court was overturned.
III. Interpretation of S&W Violations in Recent NPDs
Several recent NPDs have further clarified what is included and what is not included in the definition of “quasi-criminal” conduct, in order to sustain a claim for Serious and Willful Misconduct. In the NPD of Vasquez v. Hour Glass & Mirror, 2015 Cal. Wrk. Comp. P.D. LEXIS 208, the underlying case resolved by Compromise and Release on 11/12/13. Subsequently, a trial was set on the issue of S&W misconduct. Applicant argued he was not given proper instruction on how to perform one of his job duties. As a result of this failure by his employer, he suffered an industrial injury. The WCJ wrote:
“There is little doubt that the type of cut applicant was making into the wood, which required removal of the guard, was a dangerous operation, and most likely would have resulted in a finding that the employer was guilty of serious and willful misconduct if it had required applicant to use the saw in this manner without more instruction than he received. [citation omitted] What complicates this case is that the use of the saw in this manner was not an inherent part of the task he had been assigned, merely one he devised on his own….
…the conduct [of the employer] must be ‘of a quasi-criminal nature, the intentional doing of something either with the knowledge that it is likely to result in serious injury, or with a wanton and reckless disregard of its possible consequences….” (Id. at p. 117 [quoting Porter v. Hofman (1938) 12 Cal.2d 445, 447-448].)
In Vasquez, the court focused on the conduct of the employer, versus the conduct of the applicant. The court noted that the employer did not require the applicant to use the saw in the manner, which resulted in the industrial injury. It was the applicant’s choice to do so. Although the job safety environment was not ideal, the court was unable to identify conduct by the employer that rose to the level of “quasi-criminal” behavior. Again, the court emphasized that negligence, even gross negligence, is not sufficient to sustain the burden of proving serious and willful misconduct, the WCJ found in favor of the employer and was affirmed by the WCAB.
> In footnote 1 of the WCAB opinion, the commissioners wrote, “Applicant’s Petition is captioned ‘Petition for Reconsideration and Request for Reporter’s Transcript.’ However, the Petition does not mention any request for a transcript outside of the caption, nor does it contain an explanation for why a reporter’s transcript should be provided in this instance. Moreover, the record in EAMS does not include any communications between applicant and the court reporter regarding the provision of a full transcript, and the only transcript in EAMS is the Minutes of Hearing and Summary of Evidence for the December 30, 2014 hearing. In the absence of any information other than the caption of applicant’s Petition, we are unable to address this issue in this opinion.”
Rules regarding transcripts can be found at 8 Cal. Code Reg. § 10740, and Policy and Procedure Manual 1.135 at this link:
If a party is in need of a transcript to prove their position in a Petition for Reconsideration or Removal, it is imperative to follow these rules. Listing the Request in the Caption only, will not generate the court transcript.
> One can only guess that, in this case, perhaps the drafting attorney was utilizing a template, which is often used in law firms. Templates are huge timesavers, efficient, and effective, since there is certainly no need to “reinvent the wheel.” However, if a template is used from a prior case, the drafting attorney should be very mindful not to import any specific facts or names, theories or requests from the other case, which at the very least would be confusing to the Commissioners and at the very worst, might result in a denial of your Petition and perhaps even sanctions.
The WCAB in the NPD of Eastwood (Deceased) v. Cooper Construction, 2015 Cal. Wrk. Comp. P.D. LEXIS 587, reached a similar conclusion to the one reached in Vasquez.
In Eastwood, a carpenter died as a result of heat exposure while working in one hundred degree heat. A review of the worksite showed that on the day in question, the employees had access to water, shade and frequent rest periods. In addition, the WCAB explained:
“Concrete foreman Barry Collins confirmed in his testimony that there was a shady area for breaks…He spoke with applicant, who did not complain about the heat getting to him, and did not display sweating, vomiting or signs of dizziness. Mr. Collins did not notice anything about applicant that would have placed him on notice of an illness….”
Relying on the Supreme Court case of Lambreton v. Industrial Acci. Com. (1956) 46 Cal. 2d 498, 297 P.2d 9, 21 Cal. Comp. Cases 179, the WCAB explained that an S&W claim was a completely different animal from a plain vanilla claim for industrial injury.
> The fact pattern is different;
> The legal theory is different;
> Relief sought is different;
> The legal liability is different;
> The burden of proof is different; and
> The legal proceedings are different.
In applying this S&W standard, the court determined that there was no evidence presented by applicant that would indicate the employer’s conduct rose to the level of a “quasi-criminal” nature. Therefore the WCJ determined that applicant did not meet her burden of proving “serious and willful” violation by the employer. This finding was affirmed by the WCAB.
> In denying applicant’s Petition for Reconsideration, the WCAB also noted, “We admonish petitioner's attorney that filing a petition for reconsideration that does not comply with WCAB Rules is unacceptable. We refer petitioner's attorney to WCAB Rule 10205.11 which provides in pertinent part: ‘The text of a document shall be double spaced or one and one half spaces; however, captions, headings, headers, footnotes, footers and block quotations shall be single spaced.’ (Cal. Code Regs., tit. 8, § 10205.11.) Here, the Petition is unverified and single spaced. Failure to comply with WCAB Rules can constitute bad faith actions that may warrant the imposition of sanctions pursuant to section 5813 and WCAB Rule 10561(b)(4) (Cal. Code Regs., tit. 8, § 10561(b)(4)).” (Emphasis added.) Whether or not a Petition is “double-spaced” or “single-spaced” may seem trivial to some, but the WCAB is making it clear that NO WCAB rule should be considered trivial. They are all important and attorneys should be familiar with and in compliance with all of them, at all times.
As stated above, a claim for serious and willful can trip up even the most experienced practitioner, as these cases are rarely litigated and the process for litigating an S&W claim is completely different from that of a usual workers’ compensation claim of injury. Prudent practitioners should make certain that they have a comprehensive checklist of S&W elements to work with, in order to ensure that nothing slips through the cracks, when litigating one of these claims. Because it is clear that a Labor Code Section 4553 Serious and Willful allegation is not favored and must rise to the level of a quasi-criminal action, it will most always be strongly opposed by an employer.