The opinion of the court was delivered by: Hull , Acting P. J.
C.C. Myers, Inc. v. WCAB (Lockwood)
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
Labor Code section 4553 (hereafter section 4553) provides for a 50 percent increase in the workers' compensation recovery of an injured worker in the event the injury was caused by serious and willful misconduct of the employer. In this matter, respondent Bruce Lockwood (Claimant) was injured while working for petitioner C.C. Myers, Inc. (Employer) when a co-worker drove an excavator over Claimant's foot. Respondent Workers' Compensation Appeals Board (the Board) concluded Employer's failure to provide a "spotter" to help direct the movement of the excavator, under the surrounding circumstances, amounted to serious and willful misconduct. Employer filed a petition for review with this court, asserting the Board's determination is not supported by substantial evidence. We disagree with Employer and affirm the award.
Because the only issue presented in this matter is whether Employer's failure to provide a spotter for the excavator at the time of Claimant's injury amounted to serious and willful misconduct, we discuss only those facts relevant to that issue.
The injury occurred at a construction site near the intersection of Highway 50 and White Rock Road in Sacramento County, where Employer was engaged in the construction of a bridge linking the eastbound and westbound lanes of Highway 50 for future widening of that roadway.
On August 14, 2001, at approximately 7:30 p.m., Claimant and three others were engaged in placing steel shoring plates along the walls of a hole that had earlier been excavated at the worksite. The shoring plates, weighing approximately 850 pounds, were being moved from a stack to the holes using an excavator with its bucket removed. The driver of the excavator, Steve Barba, would drive to the stack where another employee, Brian Lussier, attached a plate to the excavator and signaled Barba that the plate was ready to move. Barba would then lift the plate, back the excavator toward the hole and swing the cab of the excavator around to position the plate near the hole. The foreman on the jobsite, Kenneth Barth, stood near the hole and assisted Barba in positioning the plates between vertical I beams already installed in the holes. Later in the day, Claimant assisted Barth in this effort. This process was repeated many times as each plate was installed in the hole, with the excavator moving along a consistent path from the stack of plates to the hole.
The normal work shift for the crew at the jobsite was 6:00 a.m. to 2:30 p.m. However, the crew had been held over to complete the installation of the plates in preparation for another crew to install rebar in the holes the next day. At the time of the accident, the crew had been on the job for 13 and one-half hours and it was starting to get dark.
Just before the accident, Barba obtained a plate from Lussier, and Claimant and Barth were standing near the hole waiting for Barba to bring the plate over. Barth was facing the excavator and had his back to Claimant. Unknown to Barth, Claimant had kneeled down to push a rock into the hole. As he did so, the excavator began moving backward to bring the plate to them. Barth did not look around to make sure the way was clear for the excavator to approach.
According to Claimant, as the excavator moved backward, it slid sideways off its normal path, thereby bringing it closer to the edge of the hole. On this trajectory, it ran over Claimant's foot. According to Lussier, who was watching from the stack of plates, the excavator did not deviate from its normal path. Instead, when Claimant kneeled down, he placed his leg in the normal path of the excavator. Lussier testified that, when he saw this, he began yelling at Barba to stop and even threw his hammer at the excavator to get Barba's attention. Barth, too, testified the excavator did not deviate from its normal path.
The excavator was equipped with a horn and backup alarm that were working on the day of the injury. Barth testified that, just prior to the injury, he heard the backup alarm. Lussier likewise testified he heard the horn and backup alarm each time the excavator moved. However, Claimant testified there was a lot of noise at the time from the traffic overhead and the machine itself and he did not remember hearing the alarm prior to the injury.
The track of the excavator rolled over Claimant's foot, slicing off the bottom of it. The resulting injury was so severe that Claimant's leg had to be amputated below the knee.
Claimant filed a workers' compensation claim and received a stipulated award of temporary disability benefits in the amount of $490 per week from August 14, 2001 to March 11, 2002, and from April 22, 2002 to May 23, 2002. He also received an award of permanent disability benefits in the amount of $170 per week, for a total of $58,862.50.
Claimant filed a petition for increased benefits based on serious and willful misconduct. He alleged various acts of Employer amounted to such misconduct, including not having a spotter on hand for the excavator, allowing Barba to use his cell phone while operating the excavator, using the excavator as a crane, and failing to have adequate first aid at the jobsite.
At the hearing on his petition, Claimant testified that a spotter functions as a second set of eyes for the excavator operator and makes sure it is safe for the excavator to move. He further testified that he has worked around heavy equipment since 1973 and has used spotters and seen spotters used with excavators and cranes. According to Claimant, if a spotter had been on hand, he would have stopped the excavator before it drove over Claimant's foot.
James Jacobs, a union business representative, testified that a spotter is needed because the operator of an excavator cannot see all around him. According to Jacobs, the spotter maintains eye contact with the operator and uses hand signals to indicate whether it is safe to proceed. Jacobs further testified that, in this type of job, it is standard industry practice to use a spotter.
The workers' compensation judge (WCJ) initially rejected Claimant's request for increased benefits, finding no serious and willful misconduct. Regarding the lack of a spotter, the WCJ explained that since Barth alone had been tasked with placing the plates in the hole, and Claimant had joined him voluntarily, "[t]here is no evidence that a need for a spotter would have been anticipated in advance . . . ."
Claimant filed a petition for reconsideration. In her Report and Recommendation on Petition for Reconsideration, the WCJ reversed herself and concluded Employer had engaged in serious and willful misconduct. However, the basis for that finding was not the failure to provide a spotter.
In its Opinion and Order Granting Reconsideration and Decision after Reconsideration, the Board agreed with the WCJ that there had been serious and willful misconduct. However, the Board rejected the WCJ's rationale and concluded instead that the misconduct was the failure to provide a spotter alone. The Board indicated that, under the circumstances presented, "use of a spotter . . . was part of the employer's duty to provide a safe place to work." According to the Board:
"[F]oreman Barth was on site so he actually knew of the dangerous condition involving the lack of a spotter. In addition, [Claimant's] testimony and that of Mr. Jacobs shows that the need to use a spotter in the vicinity of an excavator was the usual practice, so this employer knew that the probable consequences of the dangerous condition's continued existence would be serious injury to the [Claimant]. [Claimant's] testimony also shows that the crew was pressing to get the job done before the next day when ironworkers would start, which supports an inference that the employer deliberately or intentionally failed to take appropriate corrective action or acted with act [sic] with a positive and reckless disregard of the possible consequences. [Citation.] Similarly, it is reasonable to infer that, had a spotter been present, [Claimant] would not have been run over by the excavator. This establishes that the lack of a spotter proximately caused [Claimant's] injury.
"We disagree with the analysis in the WCJ's Opinion on Decision that the need for a spotter could not have been anticipated because [Claimant] was working elsewhere and spontaneously went to Mr. Barth's site to help, which was not requested by Mr. Barth. As noted above, union representative Jacobs testified that if there is a man in the excavator and a man on the ground, a spotter is safer because he can stop the excavator from running over the man on the ground. It follows ...