Opinion
C052945
4-20-2007
ELK GROVE UNIFIED SCHOOL DISTRICT, Petitioner, v. WORKERS COMPENSATION APPEALS BOARD and JANET STROTH, Respondents.
NOT TO BE PUBLISHED
In this workers compensation matter, the employer, the Elk Grove Unified School District (District), petitioned for writ of review of a decision of the Workers Compensation Appeals Board (WCAB). The WCAB found that District had engaged in serious and willful misconduct toward its injured employee, teacher Janet Stroth (Stroth), by failing to permanently remove a physically and verbally aggressive student from Stroths fifth grade classroom. (Lab. Code, § 4553 [increasing the amount of compensation by one-half if employer engages in serious and willful misconduct].)
Hereafter, undesignated section references are to the Labor Code.
We issued the writ of review. We shall now annul the award against District for serious and willful misconduct. We conclude that District did not deliberately fail to take action for Stroths safety.
BACKGROUND
On February 2, 1999, then 30-year-old Stroth, a fifth grade teacher with District, was injured when one of her students, Wesley Doe (Wesley), charged into her and knocked her down on the school bus.
Pursuant to Stroths regular workers compensation claim, District paid her temporary disability of $10,504.03, medical expenses of $41,066.34, and a compromise and release of $40,000.
Stroth also filed an additional workers compensation claim under section 4553, alleging that District had engaged in serious and willful misconduct by not permanently removing Wesley from her classroom, although Stroth had requested that he be removed. The WCAB upheld this compensation claim by adopting the report and recommendation of the workers compensation judge (WCJ), and awarded Stroth an additional $45,785.19 for Districts serious and willful misconduct (an amount representing one-half of the total benefits previously paid, as called for by section 4553).
District petitioned for a writ of review, principally contending that the WCJ and the WCAB improperly applied a standard of negligence instead of serious and willful misconduct, and that the evidence did not show such misconduct. We issued the writ of review. For reasons that follow, we conclude that the WCAB "misconceived an essential standard for adjudicating [Stroths] claim of serious and wilful misconduct," and we annul the serious and willful misconduct award against District. (See Dowden v. Industrial Acc. Com. (1963) 223 Cal.App.2d 124, 135 (Dowden).) We will incorporate the pertinent facts into the Discussion that follows.
DISCUSSION
a. The Law
"An award for serious and wilful misconduct is `of the nature of a penalty. Such an award can be sustained only if the evidence establishes and the [WCAB] finds every fact essential to its imposition." (Dowden, supra, 223 Cal.App.2d at p. 129, quoting Mercer-Fraser Co. v. Industrial Acc. Com. (1953) 40 Cal.2d 102, 108 (Mercer-Fraser).)
"A claim of serious and wilful misconduct raises issues of law as well as of fact. Issues relating to the credibility of witnesses, the persuasiveness or weight of evidence, and the resolution of conflicting inferences are questions of fact. `But as to what minimum factual elements must be proven in order to constitute serious and wilful misconduct, and the sufficiency of the evidence to that end, the questions are of law." (Dowden, supra, 223 Cal.App.2d at p. 128, quoting Mercer-Fraser, supra, 40 Cal.2d at p. 115; see also Rogers Materials Co. v. Ind. Acc. Com. (1965) 63 Cal.2d 717, 721 (Rogers); LeVesque v. Workmens Comp. App. Bd. (1970) 1 Cal.3d 627, 635-637 (LeVesque) ["substantial" evidence, not "any" evidence, is the standard for evidentiary sufficiency].)
"`"The term `serious and wilful misconduct is . . . something `much more than mere negligence, or even gross or culpable negligence[.]"" (Mercer-Fraser, supra, 40 Cal.2d at p. 117.) A finding that an employer is guilty of serious and willful misconduct in failing to act for employee safety must "be based on evidence that [the employer] deliberately failed to act for the safety of [its] employees, knowing that [its] failure would probably result in injury to them." (Rogers, supra, 63 Cal.2d at p. 722; Mercer-Fraser, supra, 40 Cal.2d at p. 117.) Thus, in the context of an alleged failure to act for employee safety, an employer guilty of serious and willful misconduct must (1) know of the dangerous condition, (2) know that the probable consequences of its continuance will involve injury to an employee, and (3) deliberately fail to take corrective action. (Johns-Manville Sales Corp. v. Workers Comp. Appeals Bd. (1979) 96 Cal.App.3d 923, 933 (Johns-Manville); Mercer-Fraser, supra, 40 Cal.2d at p. 117; Rogers, supra, 63 Cal.2d at p. 722; Dowden, supra, 223 Cal.App.2d at pp. 130-131.)
b. The Facts
The saga of Wesley Doe begins in the third grade where he established a pattern of pushing students and making sexual innuendos to the girls. Wesleys teacher, Lynn Hamilton, and the vice-principal, Jenny Seamans, recommended that he be placed in the Crossroads program, but Wesleys parents would not consent to his placement there. The Crossroads program is for students with behavioral/emotional problems. It is an intermediary program between the regular classroom program and special education. Hamilton also sought the assistance of school psychologist George Taylor, who put Wesley on a "daily contract" that encompassed academic work and behavior. Taylor also completed a psychoeducational report (a psychological assessment) of Wesley in November 1996 and determined that a specific learning disability for special education purposes was not present.
In the fourth grade, Wesley would hit or pinch other students, particularly girls; he also punched one girl in the stomach and hit another in the arm. At the request of vice-principal Seamans, Wesley was subjected to "behavior documentation." Wesley was suspended two or three times during the year. The Crossroads process was again initiated by Seamans, but Wesleys mother again balked at the idea: the mother did not want Wesley to get "`labeled."
During the fourth grade, Wesley also told other students that he wanted to put a bullet in the head of his teacher, Ron DaSilva, and DaSilvas wife and baby. The principal, Mary Helen Fitch, wanted an immediate meeting with all parties regarding this threat, but the meeting did not occur as it was near the end of the school year. DaSilva also heard Wesley threaten another teacher, Mrs. Battle, by saying, "`Ill battle you." For this threat, Wesley was suspended. Psychologist Taylor was also concerned about Wesley and believed that medication was needed, but Wesleys mother refused.
That brings us to fifth grade, and to the injury at issue here to teacher Stroth. The year-round school year began in July 1998, and Wesley was placed in Stroths class.
Wesley started the fifth grade year inauspiciously with suspensions for defiant and obscene acts. Wesley would also hit other students without reason. These behaviors prompted a July 1998 memo from psychologist Taylor to vice-principal Seamans, concluding that Wesley posed a significant risk for expulsion referral, that Wesley "may pose a potential danger to self and others," and that a referral to Crossroads — a more self-contained environment — would be in his best interest. The memo noted that Wesley has emotional problems, but their nature and extent were unknown, as his parents were reluctant to have relevant information released.
In a journal entry dated November 15, 1998 (during the fifth grade), Wesley wrote: "I never ever say something kind to M[]s. Caires [Stroths maiden name] because I hate her. . . . I can make her dead. I can beat the [h]eck out of her. I can make her cry for a thousand years." Stroth showed this journal entry to principal Fitch, who responded, "Well Wesley is back to making death threats again." Fitch also told Stroth that she (Fitch) and vice-principal Seamans were trying to get Wesley out of Stroths class.
Toward this end, a second meeting regarding the Crossroads program was held for Wesley in late November 1998. Wesleys mother now consented to such placement. But this apparently enraged Wesley, who tried to choke his mother at the meeting; she then relented, feeling she had "betrayed" Wesley. The school administration also looked into home-schooling Wesley.
Shortly after this Crossroads meeting, psychologist Taylor, on November 26, 1998, prepared another psychoeducational report pursuant to a referral initiated by teacher Stroth and Wesleys mother. By this time, Taylor had obtained Wesleys medical information that Wesleys parents had long refused to provide. In this psychoeducational assessment, Taylor concluded that Wesley met the eligibility criteria for placement in the special education classification, "emotionally disturbed."
At this point (from late November 1998 through early January 1999), Stroths class was "off-track" (i.e., not in school). Wesley returned to Stroths class in January 1999, and psychologist Taylor recommended that he be enrolled in the special education-emotionally disturbed program. Under federal mandate, that program required 50 days for placement (referral and adjudicatory hearing) unless there were compelling reasons to short-circuit this process. The 50-day period began running on Wesleys first day back to class in January 1999. Also, during this 50-day timeframe, a student is eligible to be in school, and Wesleys mother insisted that he be in the classroom.
On February 2, 1999 (which was within the 50-day placement period for the special education program), Stroth accompanied Wesley to the school bus to ensure he was seated in the front where the driver could see him (earlier that day, Wesley had knocked down a boy on the playground). Stroth insisted that Wesley sit up front rather than in the back with his friend. Angered, Wesley charged at Stroth and knocked her down, causing injury to her back, feet and shoulder, and subsequent anxiety and depression.
c. Analysis
Viewing the evidence, as we must, in the light most favorable to the WCABs decision (Rogers, supra, 63 Cal.2d at p. 721; LeVesque, supra, 1 Cal.3d at pp. 635-637), there is substantial evidence that District (1) knew of the dangerous condition that Wesley presented, and (2) knew that the probable consequences of that conditions continuance would involve injury to an employee. (Johns-Manville, supra, 96 Cal.App.3d at p. 933.) Wesleys history of physical aggression against several students and verbal aggression against three teachers — together with psychologist Taylors July 1998 warning of Wesleys "potential danger" to others, and Wesleys attempt to choke his own mother during the Districts November 1998 Crossroads meeting — satisfy these two elements of serious and willful misconduct in the context of a failure to act.
But it cannot be said the third and final element in that context has been satisfied: that District deliberately or consciously failed to act for Stroths safety, that it deliberately failed to take corrective action. (Johns-Manville, supra, 96 Cal.App.3d at p. 933; Mercer-Fraser, supra, 40 Cal.2d at p. 117; Rogers, supra, 63 Cal.2d at p. 722.)
District had tried to place Wesley in the behavior-based Crossroads program since the third grade. These efforts were stymied by a lack of consent or a waffling consent from Wesleys parents.
District had placed Wesley on "daily contract" and "behavior documentation" plans. It performed a psychoeducational assessment of him in November 1996 to determine if special education was warranted. And District carried out its more commonplace actions of counseling and suspending Wesley.
During Stroths time with Wesley in the fifth grade, District once again suspended Wesley; and once again initiated the Crossroads process, nearly succeeding on this occasion. District looked into home-schooling Wesley. And then, most importantly, District overcame the longstanding reluctance of Wesleys parents to release his medical and behavioral information, and assessed him again psychoeducationally. In this assessment, District concluded that Wesley was now eligible for the special education-emotionally disturbed program, and, through this assessment, it initiated the process to place him there. That process was subject to a federally mandated 50-day placement period. It was during this 50-day stretch that Wesley injured Stroth.
In light of the evidence, it cannot be said that District deliberately or consciously failed to act for Stroths safety.
As District argues, the WCAB here got off track by adopting and incorporating the following portions of the WCJs Report and Recommendation on Petition for Reconsideration:
"When one applies [the serious and willful misconduct] standard to the facts of this case it is clear that the [District] knew that the student Wesley Doe was a genuine risk of harm to not just [Stroth] but to all students and staff and yet [District] did not take adequate measures to minimize or eliminate the danger that Wesley presented. [¶] . . . [¶]
"The [District] did take some action to try and correct Wesleys behavior but that action was clearly inadequate. . . . [After the unsuccessful effort to place Wesley in Crossroads during the fifth grade, that] meant that Wesley either was going to be returned to [Stroths] class or [District] would have to take some other measure. [District] took no other measure whatsoever when Wesleys behavior by that point had justified initiation of the expulsion process. Between November of 1999 [sic, actually 1998] and the date of [Stroths] injury [February 2, 1999,] if the [District] had in fact initiated that process it is very likely Wesley would have been expelled and [Stroth] therefore would not have been injured."
This reasoning contains two major flaws — one with respect to the law, the other with respect to the facts.
As for the law, the WCABs reference to the Districts failure to "take adequate measures to minimize or eliminate the danger that Wesley presented" speaks in terms of negligence rather than of serious and willful misconduct, as the District rightly notes.
As for the facts, after the attempt at Crossroads failed during the fifth grade, District did not sit on its hands and take "no other measure whatsoever." District assessed Wesley again psychoeducationally, concluded that he was eligible for special education-emotionally disturbed placement, and, through this assessment, had initiated the process to place him there when he injured Stroth.
The WCAB here "misconceived an essential standard for adjudicating the claim of serious and wilful misconduct": the standard of "deliberately fail[ing] to take corrective action." (Dowden, supra, 223 Cal.App.2d at p. 135; Johns-Manville, supra, 96 Cal.App.3d at p. 933.) This presents a question of law for our independent consideration. (See Mercer-Fraser, supra, 40 Cal.2d at p. 115.)
DISPOSITION
The award for serious and willful misconduct is annulled.
In light of this resolution, it is unnecessary to discuss the amicus California School Board Associations concerns that an affirmance of the award for serious and willful misconduct would constitute a misguided intrusion into the school administrative and disciplinary process. It is also unnecessary to discuss Districts remaining contentions.
We concur:
SIMS, Acting P.J.
CANTIL-SAKAUYE, J.