ADJ11881346 — California WCAB decision

What the panel ordered

Petition for Reconsideration denied by the WCAB panel.

Petition for Reconsideration filed by applicant from the Findings and Order issued on April 15, 2024 by the WCJ, seeking to prove serious and willful misconduct by employer.

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What was disputed, and how it came out

Each issue the panel decided, with the reasoning it gave. An outcome is what this panel did on this record — not a rule, and not a prediction.

Serious and willful misconductDefendant prevailedpsyche

Applicant failed to prove that the employer's conduct rose to the level of serious and willful misconduct as required by law, despite the stressful work environment and supervisor's behavior.

From the decision · page 5Here, applicant has failed her burden of proving serious and willful misconduct. While we do not condone the conduct of applicant's supervisor in this matter, it does not rise to the level of serious and willful misconduct or the type of "quasi-criminal" conduct described in Mercer, supra. While applicant's perception may be both real and valid, the fact that applicant's perception of her supervisor's conduct caused psychological injury is not sufficient to find that the supervisor intentionally or recklessly caused such injury under the standard articulated in Mercer, supra.

The facts that decided it

The rules the panel named

Authorities as the decision cited them, with how this panel applied each one.

Mercer-Fraser, 18 Cal.Comp.Cases at p. 11

To constitute 'willful misconduct' there must be actual knowledge, or that which in the law is esteemed to be the equivalent of actual knowledge, of the peril to be apprehended from the failure to act, coupled with a conscious failure to act to the end of averting injury.

Applied to determine if employer's conduct met the threshold for serious and willful misconduct.

From the decision · page 4(Mercer-Fraser, supra, 18 Cal.Comp.Cases at p. 11.) As stated in Mercer, supra,

Rogers Materials Co. v. Industrial Acc. Com. (1965) 63 Cal.2d 717, 722

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.

Applied to assess employer's knowledge and deliberate failure to act for employee safety.

From the decision · page 5A 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 Materials Co. v. Industrial Acc. Com. (1965) 63 Cal.2d 717, 722 [30 Cal.Comp.Cases 421, 423]; Mercer-Fraser, supra, 18 Cal.Comp.Cases at p. 11.) 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. (Horenberger) (1979) 96 Cal.App.3d 923, 933 [158 Cal. Rptr. 463, 44 Cal.Comp.Cases 878]; Mercer-Fraser, supra, 18 Cal.Comp.Cases at p. 11; Rogers Materials, supra, 30 Cal.Comp.Cases at pp. 423-424; Dowden, supra, 28 Cal.Comp.Cases at p. 265.)

ADJ11881346 · June 25, 2024

What the panel ordered

What was disputed, and how it came out

The facts that decided it

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What the panel did with the medical opinions

The rules the panel named

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