ADJ10085720 · November 19, 2024

The WCJ's original decision did not adequately address defendant's argument about compliance with alternative safety measures and failed to resolve factual disputes about the provision and use of fall protection harnesses, which are critical to determining whether the safety order was violated and whether the violation was reckless or intentional. The Appeals Board granted reconsideration and remanded for a new decision to resolve these factual disputes and apply the correct legal standards.

From the decision · page 11Here, the WCJ's conclusion that defendant engaged in serious and willful misconduct appears to be premised upon the violation of a safety order, namely the failure to properly secure the skylights such that they could support 400 pounds of weight pursuant to Code of California Regulations, Title 8, section 1632. That applicant was able to fall through the skylight in the manner he did supports the conclusion that it was unable to support 400 pounds of weight. However, the WCJ's decision fails to address defendant's argument raised in the post-trial brief as well as the Petition that the safety order in question explicitly references a different safety order, Code of California Regulations, Title 8, section 3212, which authorizes the provision of fall protection equipment as an alternative method of securing workers from injury when working around preexisting skylights.

There was a serious factual dispute about whether fall protection harnesses were provided and used on the day of the injury

Favours Applicant prevailed

This dispute was critical to determining whether the safety order was violated and whether the violation was reckless or intentional, affecting the serious and willful misconduct finding

From the decision · page 12Here, according to all the witnesses who testified at trial aside from applicant himself, fall protection safety harnesses were provided and mandated in order to prevent the sort of injury applicant sustained. Applicant himself, however, testified that this was not the case, at least on the day of the injury. This represents a serious disagreement about a key fact in the case, and, as such, it was incumbent on the WCJ to evaluate the evidence and choose which testimony to credit.

Labor Code section 4553.1

A finding of serious and willful misconduct based on violation of a safety order requires findings on: (1) the specific manner of violation, (2) proximate cause of injury, and (3) knowledge or obviousness of the condition and reckless disregard by employer

The WCJ must specifically address these elements in the decision to support a serious and willful misconduct finding.

From the decision · page 8Where a finding of serious and willful misconduct is based upon violation of a safety order, the findings must include: (1) the specific manner in which the order was violated, (2) the specific manner in which the violation of the safety order proximately caused the injury or death, and (3) that the safety order, and the conditions making the order applicable, were known to and violated by the employer or its representative, or that the condition was obvious and that the failure of the employer or representative to correct the condition constituted a reckless disregard for the probable consequences. (Lab. Code, § 4553.1.)

Applicant testified that fall protection was not provided and was not used on the day of injury, while other witnesses testified that fall protection harnesses were provided and mandated

From the decision · page 12Here, according to all the witnesses who testified at trial aside from applicant himself, fall protection safety harnesses were provided and mandated in order to prevent the sort of injury applicant sustained. Applicant himself, however, testified that this was not the case, at least on the day of the injury. This represents a serious disagreement about a key fact in the case, and, as such, it was incumbent on the WCJ to evaluate the evidence and choose which testimony to credit.