Workers' Compensation Appeals Bd., Case No. SFO0461473.
The opinion of the court was delivered by: Banke, J.
CERTIFIED FOR PUBLICATION
Respondent Paul Hunt was injured while assisting with the dismantling of a truck crane used during a shutdown operation at a refinery. Hunt had been helping on another crane at the job site, and, along with two ironworkers on the rigging crew, was told by the general foreman to help with the dismantling. Hunt was injured when a section of the boom fell eight inches to the ground and onto his lower leg and ankle. The Workers' Compensation Appeals Board (Board) sustained an award of additional compensation to Hunt under Labor Code section 4553,*fn1 concluding his injuries were caused by the "serious and willful misconduct" of the operator of the crane and the general foreman, both of whom were determined to be "managing officers" of petitioner Bigge Crane & Rigging Co. (Bigge Crane). Bigge Crane challenges the award, contending (a) the operator of the crane was not a "managing officer" of the company within the meaning of section 4553 and therefore his conduct cannot support an award of additional compensation and (b) the general foreman, even assuming he qualifies as a "managing officer," did not engage in "serious and willful misconduct." We agree with both points and annul the award of additional compensation.
FACTUAL AND PROCEDURAL BACKGROUND
On the day of the accident, Mark Mom was told to disassemble ("rig out") a truck crane he had been operating for approximately six weeks at the Chevron Oil Refinery in Richmond, California. Mom had worked around or on cranes for more than 30 years, first as an oiler (who assists the operator of a "two-man" crane) and, beginning in 1980, as an operator. As an oiler, Mom was directed by the crane operator to do such things as checking and maintaining the level of machine fluids, cleaning and moving the crane, and setting up the crane at the job site. When he became an operator, he, in turn, gave such directions to the oiler when he worked on a "two-man" crane. The customer, job site superintendent or foreman would tell Mom what task he was to perform with the crane; however, Mom was in charge of the actual functioning of the crane. He would, for example, determine how to enter a job site to avoid obstacles and power lines, where to locate the crane and how loads would be hoisted and put in place. He would start and stop the crane as he believed necessary. When he was directed to disassemble a crane, he both performed that task (often by himself or with only the oiler) and gave directions to anyone who helped him. He was responsible for doing crane work as safely as possible.
Mom began working periodically for Bigge Crane in the mid-1990's. By 1998, he was a certified and licensed crane operator, which required both written and practical tests. In January 2002, he was hired by Bigge Crane to operate a 90-ton, Peck & Hiller truck crane at the Chevron refinery job site. Prior to the work at the refinery, he attended site-specific training provided by Chevron covering safety procedures, personal protection, emergency procedures and job duties of the personnel on site. The training also reviewed safety procedures and protocols for the cranes.
Mom was assigned to the night shift. At the start of the shift, the entire Bigge Crane work crew gathered at the job shack to stow their personnel gear and attend a pre-shift meeting. The 10- to 15-minute meeting was conducted by the Bigge Crane general foreman, who would tell the crew what they would be doing and with whom they would be working. The crew would then go to their assignments. Mom would go to the Peck & Hiller crane with his oiler, Jason Strode, and often would be working with ironworkers, all of whom were part of the Bigge Crane rigging crew, and who would, among other things, secure the loads hoisted by the crane.
On the day of the accident, Mom was called in for the day shift, and was told by Curtis Embry, the general foreman and supervisor for that area of the job site on that shift, to disassemble the crane. Embry, in turn, had been told by Chevron's supervisor on the job to have the crane dismantled. Embry had been trained in rigging safety and, as the general foreman, was responsible for seeing that rigging operations were conducted safely. Typically, after assigning operators and workers to their tasks, Embry would hold a safety meeting reviewing concerns and precautions in connection with the specific tasks.
Mom had disassembled hundreds of one-man cranes and more than 30 "two-man" cranes while working at Bigge Crane, and he and his oiler, Strode, had reviewed the dismantling process for the Peck & Hiller crane. Strode, however, was not dispatched to the refinery that day, so Chevron's rigging department told Mom he could have whomever he wanted to work as the oiler. Mom asked for Dave McGarry, another experienced operator and oiler. McGarry joined Mom at the crane after Mom had already brought it off the blocks. McGarry turned the crane, counterweights were set, Mom let the boom down so it touched the ground, the ball and block and jib lines were unhooked, and the jib strut was lowered.
In the meantime, Embry told the operator of another crane (an 80-ton truck crane) and Hunt, who was working as the oiler, to go and assist Mom. He also told two ironworkers, who were part of the rigging crew assisting with the crane work, including disassembly, to help Mom. Embry also went over to help. Mom continued with the dismantling process, giving instructions to those assisting. Embry did not stop the work, or ask Mom to do so, for a safety meeting. Embry viewed the task as "just another job" over the course of the day.
McGarry was then called away to operate another crane, and Hunt took over as the oiler. At one point, while Mom was in the cab of the crane, he called out to Embry that the ironworkers were performing work out of sequence, specifically, starting to remove the tip of the boom, and needed to stop momentarily. Embry stopped the workers, and Mom explained several other tasks needed to be done first. The tasks were accomplished, the work continued, and the tip was removed without incident.
Before the tip was removed, Embry was called away to another area by Chevron's supervisor. At the time he left, Embry saw there were "at least 16" "cribbing" blocks (six by eight inch wooden blocks, four feet long) "available to be used." He knew the blocks were for use under the boom sections, and also knew blocks had already been placed under the tip of the boom as it was removed.
The disassembly of the crane continued. When the ironworkers started hammering several pins out of the next boom section, Mom again exited the cab of the crane, walked over to where they were working and had them stop until blocks were placed. An assist crane that had been brought over lifted the boom, and Mom placed two blocks under the section. Instead of returning to the cab to tighten the bridle (for cantilever support), Mom walked over to where Hunt was standing, told the two ironworkers to stand back, called for everyone to have their feet out of the way and pounded a bottom pin. Mom thought his feet were sufficiently out of the way and did not look to see if Hunt's feet were also clear. The boom section and the one adjoining it, each weighing approximately 4,000 pounds, dropped about eight inches, the adjoining section dropping onto Mom's foot and Hunt's lower leg and ankle.
The boom sections dropped because there was insufficient support under one of the sections. Mom had been blocking booms for over 30 years, had read industry standards and publications and had twice taken tests on the task and performed well. This time, however, he had gotten distracted by having to stop and redirect the ironworkers and was not cognizant at the time of the accident that blocks were not in place under the adjoining section. Had he followed his usual sequence, he would have returned to the cab and tightened the bridle for cantilever support, and only the oiler would have been on the boom removing the pins.
Hunt filed a petition for additional compensation under sections 4553 and 4553.1, alleging his injury was caused by "serious and willful misconduct" on the part of Bigge Crane. Following an evidentiary hearing at which Hunt, Embry and McGarry testified, and at which Mom's testimony before the Occupational, Safety and Health Appeals Board was introduced into the record, the workers' compensation administrative law judge (WCJ) issued findings and an award. The WCJ found the injury was caused by "serious and willful misconduct of a managing representative" of Bigge Crane*fn2 consisting of (1) "placing the applicant in a knowing and obvious position of danger without safety precaution" and (2) violating safety order, California Code of Regulations, title 8, section 4992, by failing to properly block a boom being disassembled. In his "Opinion on Decision," the WCJ identified Embry as a "managing representative" of Bigge Crane because he "had authority to tell other foreman what particular jobs were to be performed and was responsible to ensure that rigging out was done safely." Alternatively, the WCJ identified Mom as a "managing representative" because "it appears that general discretionary power of direction was delegated to [him]."
Bigge Crane timely filed a petition for reconsideration, which was denied by the Board, which incorporated and adopted the report and recommendation on reconsideration of the WCJ. Bigge Crane filed the instant petition for writ of review pursuant to section 5950.
Whether a workplace injury is caused by the "serious and willful misconduct" of a company's "managing officer" as those terms are used in section 4553 is a significant issue.*fn3 As the Supreme Court explained in Lamberton v. Industrial Acc. Com. (1956) 46 Cal.2d 498 [297 P.2d 9], "a claim for normal benefits and a claim for increased benefits by reason of serious and wilful misconduct are not sought upon the same general set of facts, nor do they involve merely a difference or change in legal theory. The relief sought is not the same; the legal liability is not the same; and the 'proceedings' to recover the benefits as respectively provided are recognized as being different. (Lab. Code, § 5407.) Normal benefits automatically follow from an injury within a covered employment relationship, whereas the additional award based on serious and wilful misconduct of the employer is an additional award which, although denominated and regarded for administrative purposes as 'increased compensation,' is actually of the nature of a penalty, which is imposed . . . only upon proof of the aggravated criminal or quasi-criminal behavior which constitutes serious and wilful misconduct, and against which the employer cannot purchase insurance. (Mercer-Fraser Co. v. Industrial Acc. Com. (1953) 40 Cal.2d 102, 108, 121 [251 P.2d 955] [(Mercer-Fraser)], & authorities there cited; Ins. Code, § 11661.)"*fn4 (Id. at p. 504, fn. omitted.)
Bigge Crane contends the award of additional compensation in this case cannot be sustained because no "executive, managing officer or general superintendent" of the company engaged in "serious and willful misconduct." It asserts the crane operator, Mom, was not a "managing officer" of the company, and its general foreman, Embry, even assuming he was a "managing officer," did not engage in "serious and willful misconduct." Hunt maintains the WCJ's determinations that both Mom and Embry qualify as "managing officers" of Bigge Crane, and that both engaged in "serious and willful misconduct," are supported by the record. As we discuss in the following sections, we conclude that under the ...