Opinion
NOT TO BE PUBLISHED
ORGINAL PROCEEDINGS; petition for writ of review from a decision of the Workers’ Compensation Appeals Board. Alfonso J. Moresi, Robbie G. Caplane and Frank M. Brass, Commissioners. Terrence E. McEvoy, Workers’ Compensation Administrative Law Judge. WCAB No. BAK0140714
Sylvia Lopez, for Petitioner.
No appearance by Respondent Workers’ Compensation Appeals Board.
Law Offices of Mullen & Fillippi and Pamela L. Goe, for Respondent Kinley Construction.
OPINION
Before Levy, A.P.J., Dawson, J., and Poochigian, J.
Baldemar Sanchez petitions this court for a writ of review from a decision of the Workers’ Compensation Appeals Board (WCAB). (Lab. Code, § 5950; Cal. Rules of Court, rule 8.495.) Sanchez contends the WCAB erred in concluding that his employer’s conduct was negligent, thus avoiding serious and willful misconduct penalties (§ 4553), by failing to properly train and supervise a co-employee in operating a piece of heavy machinery. Finding the WCAB’s decision supported by substantial evidence, we must deny the petition.
Further statutory references are to the Labor Code.
BACKGROUND
Kinley Construction Company (Kinley) hired Sanchez and Alan Haines in May 2003 as general laborers to assist in the replacement of an underground fuel tank at a Navy base in Point Loma. In the morning of May 16, 2003, about four days after he started working for Kinley and despite not having any or very little experience using heavy equipment, Haines asked his supervisor, Donald Wilcox, for permission to use an eight-ton Ingersoll compactor. Wilcox agreed and spent five to ten minutes with Haines showing him how to operate the controls. Haines was not shown an operating manual, but the controls primarily consisted of left, right, forward, and backward, with a two-inch emergency stop push-button near the forward and reverse lever. Wilcox did not specifically remember instructing Haines how to operate the emergency stop button.
Haines reportedly expressed concern to Wilcox about his ability to navigate the eight-ton compactor in proximity to Sanchez, who was operating a smaller walk-behind roller, but Wilcox directed him to “get back up on the compactor and operate it.” Unfortunately, between 1:00 and 1:30 p.m., Haines brought the eight-ton compactor too close to the fuel tank and violated the space where Sanchez was working. Haines realized he had come into contact with Sanchez and panicked, mistakenly causing the eight-ton compactor to move forward rather than backwards.
Sanchez sustained injuries to his pelvis, hips, abdomen, bilateral knees, right thigh, and groin from being crushed by the eight-ton compactor. He resolved his underlying workers’ compensation case through a $60,000 compromise and release, which expressly left open his serious and willful misconduct claim. After several days of hearings, a workers’ compensation administrative law judge (WCJ) concluded the actions or inactions of Kinley’s supervising employees regarding the May 16, 2003, incident, “while negligent, do not rise to the level of serious and willful misconduct.” Agreeing with the WCJ, the WCAB denied Sanchez’s petition for reconsideration.
DISCUSSION
Section 4553 provides that the WCAB must increase the amount of workers’ compensation otherwise recoverable by an employee by 50 percent, together with costs up to $250, where an injury results from the employer’s “serious and willful misconduct.” “‘Serious and willful misconduct’ within the meaning of section 4553 is an act deliberately done for the express purpose of injuring another, or intentionally performed whether with knowledge that serious injury is a probable result or with a positive, active, wanton, reckless and absolute disregard of its possibly damaging consequences.” (Ferguson v. Workers’ Comp. Appeals Bd. (1995) 33 Cal.App.4th 1613, 1622.) Because intent or knowledge is required, serious and willful misconduct is antithesis of negligence or even gross negligence. (Mercer-Fraser Co. v. Industrial Acc. Com. (1953) 40 Cal.2d 102, 120; Johns-Manville Sales Corp. v. Workers’ Comp. Appeals Bd. (1979) 96 Cal.App.3d 923, 931.)
Section 4553 provides: “The amount of compensation otherwise recoverable shall be increased one-half, together with costs and expenses not to exceed two hundred fifty dollars ($250), where the employee is injured by reason of the serious and willful misconduct of any of the following: [¶] (a) The employer, or his managing representative. [¶] (b) If the employer is a partnership, on the part of one of the partners or a managing representative or general superintendent thereof. [¶] (c) If the employer is a corporation, on the part of an executive, managing officer, or general superintendent thereof.”
Although every employer has a duty to provide a “safe and healthful” place of employment (§ 6400) and to take reasonably necessary steps to protect the life, safety, and health of its employees (§§ 6401, 6406), an employer is not the guarantor of absolute safety of its employees. (Mercer-Fraser Co. v. Industrial Acc. Com., supra, 40 Cal.2d at p. 108.) “[A]n 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.” (Johns-Manville Sales Corp. v. Workers’ Comp. Appeals Bd., supra, 96 Cal.App.3d at p. 933.) The interpretation of what factual elements must be present to prove serious and willful misconduct is a matter of law, but assessing the credibility of witnesses and the persuasiveness or weight of the evidence represent questions of fact that must be upheld if supported by substantial evidence. (§ 5953; Mercer-Fraser Co., supra, at p. 115.)
Sanchez effectively asks this court to disregard the WCAB’s factual finding of negligence and to conclude that Kinley’s supervisors intentionally failed to instruct Haines in the proper use of the eight-ton compactor with full knowledge that Haines lack of experience would likely lead to physical injury. Sanchez points to Haines’ admitted lack of prior experience in operating such equipment and Wilcox’s failure to provide Haines with a copy of the operating manual. Sanchez also contends Kinley should have provided more explicit directions in maintaining a safe distance from other equipment and could have better supervised the conduct of its employees. Sanchez claims “… Wilcox was well aware of the high risk of an accident given all of the factors …. Yet, he intentionally allowed the dangers to persist in order to complete the job.”
In finding Kinley merely negligent, rather than having committed serious and willful misconduct, the WCJ explained in his report and recommendation to the WCAB that despite Haines’ attempt to minimize his experience in operating an eight-ton compactor, “the more credible testimony” revealed he had at least “some training on the compactor prior to operating it on the job site where the injury occurred.” The WCJ noted that, based on the testimony, the compactor “does not appear to be a complicated piece of machinery to operate,” with only two levers for forward and reverse, and moved no faster than a person could walk. The WCJ also relied on the testimony of another coworker who observed Haines operating the machine efficiently the entire morning before the accident.
Adopting the WCJ’s recommendation, the WCAB agreed that Kinley’s supervisors may have been negligent in placing three pieces of heavy equipment within fairly close proximity, but appropriately concluded that negligence alone does not support a claim for serious and willful misconduct. To support a serious and willful claim, an employer representative must know of a dangerous condition and deliberately proceed despite a likely risk of injury. Here, the closest allegation of a known danger appears from Haines’ testimony that he warned Wilcox he felt uncomfortable operating the eight-ton compactor, but that Wilcox nevertheless ordered him to continue. However, the WCJ found Haines “was not a good or credible witness,” with “many lapses of memory of the events” that could not be confirmed with that of another coworker who “testified that Alan Haines appeared excited and happy to be operating the compactor, and did not appear to be concerned about operating the equipment.” The WCJ accordingly concluded “[t]he more credible testimony supports the conclusion that no such concern about being scared or having difficulty operating the compactor was voiced to Donald Wilcox by Alan Haines.”
While the record reflects ample evidence of employer negligence, there is no indication Wilcox or another representative of Kinley knowingly or deliberately either failed to take corrective action to prevent a serious injury likely to occur or acted with a positive, active, wanton, reckless and absolute disregard of possibly damaging consequences. Instead, as the WCJ concluded, “the failure to have continuous, on the ground monitoring was negligence of some degree,” but “did not arise [sic] to the level of quasi-criminal conduct necessary to support a claim of serious and willful misconduct.” Finding substantial evidence to support the WCAB’s adoption of the WCJ’s findings, we must deny the petition.
DISPOSITION
The petition for writ of review is denied. This opinion is final forthwith as to this court.