ADJ11739682 · October 28, 2024

The WCJ and WCAB found no substantial evidence of employer negligence, concluding the accident was not foreseeable or preventable by the employer, thus defendant was entitled to full credit for the third party recovery.

From the decision · page 1Applicant seeks reconsideration of the February 28, 2022 Findings and Order (F&O), wherein the workers' compensation administrative law judge (WCJ) found that applicant, while employed as a landscaper on November 6, 2018, sustained industrial injury to his chest, back, left elbow, left wrist, left shoulder, and neck. The WCJ found that there was no negligence on the part of the employer and granted defendant credit in the net amount of applicant's recovery from a civil lawsuit arising out of the industrial injury.

Applicant was driving at an unsafe speed and failed to observe a vehicle stopped in his lane, causing the accident.

Favours Defendant prevailed

This fact established the proximate cause of the accident was applicant's unsafe driving, not employer negligence.

From the decision · page 2According to the police report, the Applicant was driving at an unsafe speed and failed to observe a vehicle stopped in his lane. Applicant struck the vehicle and a person standing near the vehicle. As a result of the impact the individual who was struck was "propelled across the center divider wall and into the westbound lanes of I-10." The individual sustained fatal injuries. Joint Exhibit X.

Applicant did not provide evidence that the employer knew or should have known of a dangerous condition or caused the accident.

Favours Defendant prevailed

Lack of evidence of employer knowledge or foreseeability negated employer negligence claim.

Applicant testified he was speeding and acknowledged that speeding may have caused the accident.

Favours Defendant prevailed

Applicant's own testimony supported the conclusion that the accident was due to his unsafe driving, not employer fault.

From the decision · page 5Applicant did not provide any evidence that the employer had any knowledge of a dangerous condition in the workplace. Applicant testified he was using the company car and was instructed by the company to pick up his co-workers. MOH/SOE dated 1/26/22 pg. 3 lines 22-23. However, there was no evidence provided that the company car the Applicant was using caused the accident or the car was dangerous in anyway. In fact, the Applicant was cited for speeding and testified he would not be surprised if his speeding caused the accident. Ibid line 1 and lines 11-12.

Bonner, 55 Cal. Comp. Cases at 570-471

An employer cannot be held negligent without evidence it knew or should have known of a dangerous condition and failed to take reasonable steps to prevent injury.

Applied to reject employer negligence claim due to lack of foreseeability and knowledge of dangerous condition.

From the decision · page 11"[T]he employer's statutory duty to maintain a safe workplace cannot be delegated to a third party so as to effectively insulate the employer from liability. Where the employer has knowledge of a dangerous condition in the workplace caused by the negligence of a third party, or reasonably should have discovered it, and fails to take reasonable steps either to alleviate the danger or to give an adequate warning in order to prevent injury to employees, the employer, for purposes of the credit determinations, must, as a matter of law, be found concurrently negligent at a degree greater than a de minimis amount. (Bonner, 55 Cal. Comp. Cases at 570-471. Emphasis added [by WCAB]."

Martinez v. Associated Engineering & Constr. Co. (1979) 44 Cal.Comp.Cases 1012

The burden of proof for third party credit claims and employer negligence is set forth in Martinez v. Associated Engineering & Constr. Co. (1979) 44 Cal.Comp.Cases 1012.

Outlined the burden shifting framework for third party credit and employer negligence claims.

From the decision · page 3In Martinez v. Associated Engineering & Constr. Co. (1979) 44 Cal.Comp.Cases 1012, [1979 Cal. Wrk. Comp. LEXIS 2756] (Appeals Board en banc), we held that the evaluation of a defendant's claim of credit rights required the following analysis:

Applicant's testimony that he was speeding and that the employer did not force him to break the law

From the decision · page 5Applicant did not provide any evidence that the employer had any knowledge of a dangerous condition in the workplace. Applicant testified he was using the company car and was instructed by the company to pick up his co-workers. MOH/SOE dated 1/26/22 pg. 3 lines 22-23. However, there was no evidence provided that the company car the Applicant was using caused the accident or the car was dangerous in anyway. In fact, the Applicant was cited for speeding and testified he would not be surprised if his speeding caused the accident. Ibid line 1 and lines 11-12.