ADJ10718690 — California WCAB decision

What the panel ordered

Petition for Reconsideration denied by the Appeals Board on February 14, 2025.

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 misconductApplicant prevailedback · bilateral shoulders · right lower extremity · right foot · trunk

The WCJ found that the employer knew of dangerous forklift conditions (nonfunctioning brakes and steering) and deliberately failed to act, placing the applicant in a dangerous position, causing injury. The Appeals Board gave great weight to the WCJ's credibility determinations and found no substantial contrary evidence, affirming serious and willful misconduct.

From the decision · page 2On November 15, 2024, the WCJ issued the F&A, determining in relevant part that "[t]he employer failed to provide a safe work environment because the applicant was operating a forklift that had nonfunctioning steering and brake mechanisms." (Finding of Fact No. 2.) The WCJ further determined that "[t]he employer knew that the forklift was nonfunctional yet allowed the applicant to be placed in a dangerous position likely to be injured," and that "[t]he forklift towing applicant's forklift had brakes that were unreliable." (Findings of Fact Nos. 3 and 4.) Accordingly, the WCJ awarded increased disability pursuant to section 4453, less attorney fees. (Award, Nos. 1 & 2.)

The facts that decided it

What the panel treated as outcome-determinative, and which side it favoured.

Employer knew the forklift used by applicant had nonfunctioning brakes and steering and that the towing forklift had unreliable brakes.

Favours Applicant prevailed

This knowledge established the dangerous condition element of serious and willful misconduct.

From the decision · page 2On November 15, 2024, the WCJ issued the F&A, determining in relevant part that "[t]he employer failed to provide a safe work environment because the applicant was operating a forklift that had nonfunctioning steering and brake mechanisms." (Finding of Fact No. 2.) The WCJ further determined that "[t]he employer knew that the forklift was nonfunctional yet allowed the applicant to be placed in a dangerous position likely to be injured," and that "[t]he forklift towing applicant's forklift had brakes that were unreliable." (Findings of Fact Nos. 3 and 4.) Accordingly, the WCJ awarded increased disability pursuant to section 4453, less attorney fees. (Award, Nos. 1 & 2.)

Employer deliberately placed applicant in a dangerous position by ordering him to ride on a forklift that was unsafe to operate.

Favours Applicant prevailed

This deliberate act satisfied the element of deliberate failure to take corrective action for serious and willful misconduct.

Applicant was injured when the forklift overturned during the towing operation.

Favours Applicant prevailed

The injury was directly caused by the employer's serious and willful misconduct in placing applicant in a dangerous situation.

From the decision · page 7The employee must also demonstrate that the injury is caused by the employer's serious and willful misconduct. The applicant's injury was directly caused by the employer's serious and willful misconduct because he placed the applicant in a clearly unsafe position. The applicant was riding on a vehicle that he was unable to control. The accident took place in an area of the road that was uneven and caused the forklift to tip and fall over.

ADJ10718690 · February 14, 2025

What the panel ordered

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