What the panel treated as outcome-determinative, and which side it favoured.
Applicant testified he had never operated an ATV before and was uncomfortable with the assignment, expressing this to Sergeant Hines who refused to change the operations plan or provide protective equipment.
Favours Applicant prevailed
This established the employer's knowledge of the dangerous condition and conscious disregard for safety, supporting serious and willful misconduct.
From the decision · page 4At trial, Applicant testified that the special assignment at Bonelli Park was
to assist with the visit of former President Obama. (Minutes of
Hearing/Summary of Evidence "MOH/SOE", at p. 3:20-22). He identified the
sergeant at Bonelli Park as Sergeant Hines the team leader for the event who
gave him his orders and assignment. (Id. at 3:23-25; 6:7-8). At trial, he again
testified that he had never operated an ATV prior to this date. (Id. at 3:24-25).
He told Hines that he had never operated an ATV and was uncomfortable with
the assignment. (Id. at 4:3-5). Hines told him that it was too late to change the
operations plan. (Id.). There were other officers patrolling the park by car and
horseback. (Id. at 5:15-16). The employer never gave him any training, and he
had to ask his coworkers how to move the ATV forward and back which was
accomplished in about a minute. (Id. at 4:7-9). Yet, he still felt only minimally
able to operate the ATV. (Id. at 4:6-8). He asked his sergeant for a helmet, but
was not provided with any personal protective equipment ("PPE"). (Id. at 5:1-2;
4:8-9).
Defendant failed to timely rebut applicant's testimony that Hines was a managing representative with discretionary authority, and the evidence submitted post-trial was inadmissible.
Favours Applicant prevailed
This failure to rebut supported the WCJ's finding that Hines was a managing representative whose misconduct caused the injury.
From the decision · page 5Defendant argues that the undersigned erred in requiring Defendant to
raise the issue of employer involvement in the Pre-Trial Conference Statement,
MSC or during trial. Defendant appears to be arguing that the burden of
establishing serious and willful misconduct against the employer lies with the
injured employee. However, the undersigned's comment in this regard, as
expressed in the Findings & Award ("F&A") related not to Applicant's burden
of proof, but rather to Defendant's attempt to provide rebuttal evidence
subsequent to the close of trial. Pursuant to the F&A, this WCJ found that
Applicant satisfied his burden of proof inclusive of Labor Code section 4553
based on his unrebutted and credible testimony at trial. Once Applicant met his
burden of proof, the burden shifted to Defendant to rebut Applicant's testimony.
Defendant's first attempt to rebut Applicant's testimony regarding Hines
position or authority was in its post-trial brief (EAMS Doc. ID# 40040665)
wherein Defendant attached a work roster from October 10, 2014.
Applicant's credible and unrebutted testimony was accepted by the WCJ despite attempts at impeachment regarding the supervisor's name, affirming the finding of serious and willful misconduct.
Favours Applicant prevailed
Credibility of applicant's testimony was key to establishing employer misconduct.
From the decision · page 6Defendant argues that in assessing the Applicant's credibility, this WCJ
did not address the fact that Applicant was impeached regarding his lack of
knowledge of his supervisor's name at trial. Impeachment evidence rests within
the sound discretion of the trial court. In his deposition, when asked the name
of his commanding officer or supervisor, Applicant testified that he was a
sergeant but that he had never worked with him before since this was a special
operation. Later upon further probing on the same question, he testified that he
believed that the sergeant overseeing the operations was named Hines but was
not 100% sure of the name. There was no ambiguity or uncertainty as to Hines'
rank or supervisory authority. At the time of trial, which occurred approximately
eleven months after the deposition, Applicant credibly identified his supervisor
for the special operations as Sergeant Hines. Defendant's attempt at
impeachment relies primarily on Applicant's memory at the time of the
deposition. The relevance of his inability to recollect the last name of the
sergeant given the facts of this case as impeachment evidence is thus opaque.
Failure to provide training and protective equipment caused the applicant's injury when he lost control of the ATV and was thrown off, landing on his head.
Favours Applicant prevailed
This causal link supported the finding of serious and willful misconduct under the safety order violation.
From the decision · page 10The nature of the safety order is broad as drafted but was designed to cover
all places of employment in California. Therefore, the undersigned focused on
the nature of the training germane to this case. Clearly, not every instance of
failing to provide training would result in a serious and willful finding. However,
as the peril to the employee intensifies, the more consideration is given to the
safety order. Applicant has established the prima facia elements of violation of
3203(a)(7)(C) were satisfied. Here, the Applicant filed a separate Petition for
Serious and Willful outlining the specific manner in which the safety order was
violated. Applicant testified that while he was driving, he lost control and was
suddenly thrown off the ATV landing on his head. Had the Applicant been
provided with training for this new job assignment, it is reasonably foreseeable
that the accident could have been prevented. Therefore, the undersigned finds
that failure to train did proximately cause the injury. Finally, the employer knew
or should have known that driving the ATV without training was likely to result
in defective operation of the ATV. The employer's failure to take any corrective
action equates to a reckless disregard for the probable consequences.