ADJ12788201 · May 1, 2026

Applicant did not carry burden to show serious and willful misconduct was proximate cause of injury; manager's act of grabbing tote bag was inappropriate but not done with intent or reckless disregard likely to cause serious injury.

From the decision · page 1Defendant CVS Health Corporation1 seeks reconsideration of a workers' compensation administrative law judge's (WCJ) Findings of Fact and Order of January 23, 2026, wherein it was found, "Pursuant to Labor Code § 4553, the applicant was injured as a result of the serious and willful misconduct of her manager." (Finding No. 3.) In this matter, while employed on November 14, 2019 as an assistant store manager, applicant sustained admitted injury to the right forearm, right wrist, right fingers, right shoulder, right hand, and psyche. However, "the nature and extent of Applicant's injuries are all deferred pending further discovery."

Applicant's credible testimony of manager grabbing tote bag and prying fingers

Favours neutral

Established the factual basis of the incident but did not prove intent or reckless disregard for serious injury

From the decision · page 3Turning to the merits, the only trial testimony in this matter was the testimony provided by the applicant. At trial, applicant testified that she went from the main part of the store into the warehouse to dispose of sugar that was leaking from a bag. The sugar and the damaged sugar bag were in a tote bag that applicant was carrying from the main part of the store to the trash bins in the warehouse portion of the store. She described the tote bag as a bag that was 2 feet by 1 feet by 1 feet and which weight approximately five pounds.

Manager's act was inappropriate but lacked intent or reckless disregard for serious injury

Favours Defendant prevailed

Key to denying serious and willful misconduct claim as required by Labor Code section 4553

From the decision · page 6of applicant's right arm and prying of her fingers back in order to secure the tote was completely inappropriate behavior from a manager. However, we cannot conclude that such an act, however egregious, was done with "knowledge that it [was] likely to result in serious injury, or with a wanton and reckless disregard of its possible consequences" (Mercer-Fraser Co., supra, 40 Cal.2d at p. 117 [emphasis added].) We cannot conclude that grabbing a bag from someone, even involving grabbing of the arm and prying of the fingers to do so, evinced an intent from the manager to harm the applicant or that such an action was likely to result in serious injury (and, without minimizing applicant's injuries, the nature and extent of which were deferred, it is unclear if this incident did lead to "serious" injury, as contemplated by the statute).

Johns-Manville Sales Corp. v. Workers' Comp. Appeals Bd. (Horenberger) (1979) 96 Cal.App.3d 923

Serious and willful misconduct requires intentional act with knowledge that serious injury is probable or reckless disregard of consequences

Applied to determine if manager's conduct met the standard for serious and willful misconduct

From the decision · page 4Johns-Manville Sales Corp. v. Workers' Comp. Appeals Bd. (Horenberger) (1979) 96 Cal.App.3d 923, 930-931 [44 Cal.Comp.Cases 878] contains an in-depth discussion of the significant findings necessary to impose "serious and willful" liability. The Horenberger court explained that:

Mercer-Fraser Co. v. Industrial Acc. Com. (1953) 40 Cal.2d 102

Willful misconduct means intentional act with knowledge or reckless disregard, more than negligence

Clarified the meaning of willful misconduct in context of Labor Code section 4553

From the decision · page 4In Mercer-Fraser Co. v. Industrial Acc. Com. (1953) 40 Cal.2d 102, 117 [18 Cal.Comp.Cases 3], the Supreme Court explained that "`Willful misconduct' means something different from and more than negligence, however gross. The term "serious and willful misconduct" is described... as being something "much more than mere negligence, or even gross or culpable negligence" and as involving "conduct of a quasi criminal nature, the intentional doing of something either with the knowledge that it is likely to result in serious injury, or with a wanton and reckless disregard of its possible consequences"... The mere failure to perform a statutory duty is not, alone, willful misconduct. It amounts only to simple negligence.'" (Quoting Porter v. Hofman (1938) 12 Cal.2d 445, 448.)

Applicant's credible testimony describing the incident with manager grabbing tote bag and prying fingers

From the decision · page 3Turning to the merits, the only trial testimony in this matter was the testimony provided by the applicant. At trial, applicant testified that she went from the main part of the store into the warehouse to dispose of sugar that was leaking from a bag. The sugar and the damaged sugar bag were in a tote bag that applicant was carrying from the main part of the store to the trash bins in the warehouse portion of the store. She described the tote bag as a bag that was 2 feet by 1 feet by 1 feet and which weight approximately five pounds.

Prior acts of harassment and aggression by manager noted but found of limited probative value for serious and willful misconduct causation