Abron v. WCAB

In Abron v. WCAB (1973), 34 CA3d 232, 109 CR 778, 38 CCC 591, the Court stated: '. . . To constitute wilful misconduct there must be either actual knowledge, or that which the law deems the equivalent of actual knowledge, of the peril to be apprehended from the failure to act, coupled with a conscious failure to act to the end of averting injury. An employer must know 'the probable consequences of his failure to provide more adequate safety devices or a safer place to work. He must have put his mind to the existence of a danger to an employee and have failed to take precautions to avert that danger.' (38 CCC at 594). "In this case applicant stated that he had previously complained about the walk-boards and suggested that holes be drilled through the walk-boards so that a pin could be inserted directly into the truck. He stated that he had discussed this matter with his supervisor, Mr. Cloward, 'perhaps as many as two dozen times.' . . . He further stated that he had mentioned this within a year of his starting work for Bekins in 1967 and that he would make mention of this 'every so often when there was an incident or an occasion for comment.' He recalled mentioning it at a safety meeting at the manager's office. Mr. Cloward testified that although he thought the board could be utilized in a safe manner, he had been told on 'more than one occasion' that applicant believed the walk-board was unsafe. "Mr. Cloward could recall only one incident involving a walk-board type injury and stated that he believed that that other incident was not similar to applicant's incident. Significantly however, defendant did not submit any substantial evidence that the walk-board could in fact be used safely, but rather submitted only the testimony of Mr. Cloward that he believed that it could be used safely without any supporting documentation. Thus the issue here involves a credibility determination. As between the testimony of applicant and the testimony of Mr. Cloward, the judge indicated that he believed applicant to be the more credible witness. In view of applicant's testimony found to be credible by the judge, it is apparent that the employer had actual knowledge of the unsafe condition, knew the probable consequences of the failure to rectify the condition and failed to take precautions to avert the danger. ( Abron, supra). Moreover defendants submitted no substantial evidence that it would have been unreasonable to have taken precautions to avert the injury. We therefore conclude that the workers' compensation judge's finding as to serious and wilful misconduct was justified."