The Court of Appeal Issued a Non Published Decision on the Issue of Serious and Wilful Misconduct

• Posted By: Harvey Brown
• October 1, 2010

This is a very significant case for workers’ compensation principles in that it discusses the current case law.

The applicant was killed in an industrial accident. The accident occurred when a ripper shank fell off a crane killing the applicant.

After review of the accident, OSHA cited the employer for a “general safety violation”. The widow filed a Serious and Wilful Misconduct (S&W) claim under Labor Code sections 4553 and 4553.1.

The case went to trial and the Workers’ Compensation Judge (WCJ) found the employer liable for Serious and Wilful Misconduct. On petition for reconsideration the Workers’ Compensation Appeals Board (WCAB) agreed with the WCJ.

The employer filed a writ and the appellate court issued this opinion. It is a very good synopsis of all current law regarding S&W’s and violations of safety orders.

In both instances the Court of Appeal indicated there was not substantial evidence of a S&W. Even though the death was tragic there was no serious and wilful misconduct or a violation of a safety order for workers compensation purposes. Keep in mind the employer was cited by OSHA but this was not sufficient for a S&W.

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Editor: Harvey Brown

Firm: Samuelsen, Gonzalez, Valenzuela and Brown

Address: 18881 Von Karman # 250 Irvine 92612

Phone: 949 252-1300

Case: Ford Construction Company v WCAB (Newell)
This is a non published Court of Appeal case

• Posted In: Work Injury