SERIOUS AND WILLFUL MISCONDUCT - Conduct on the part of the employee-Labor Code §4551-Where an injury is caused by the serious and willful misconduct of the injured employee, the compensation otherwise recoverable shall be reduced by one half. The words "serious and willful misconduct," when applied to the employee, have the same meaning as when applied to the employer pursuant to Labor Code §4553. (See Hawaiian Pineapple Company Ltd. v. Industrial Accident Commission (Churchill) (1953) 40 Cal.2d 656.) [Writ Denied]

SERIOUS AND WILLFUL MISCONDUCT - Labor Code §4553-To constitute serious and willful misconduct, there must be more than mere negligence or even gross culpable negligence and it must involve the intentional doing of something either with the knowledge that it is likely to result in serious injury or with a wanton and reckless disregard of the possible consequences. (See Mercer-Fraser Co. v. Industrial Accident Commission (Soden) (1953) 40 Cal.2d 102.) Extremely poor judgment and foolishness do not equate to serious and willful misconduct. Grant Joint Union High School District v. Workers' Compensation Appeals Board (Darren Butler) 9 WCAB Rptr. 10,330 [Writ Denied]

SERIOUS AND WILLFUL MISCONDUCT - Labor Code §4553–A finding that an employer is guilty of serious and willful misconduct in failing to act for employee safety must be based on evidence that the employer deliberately failed to act for the safety of its employees, knowing that its failure would probably result in injury to them. (See Mercer-Fraser Co. v. Industrial Acc. Com. (1963) 40 Cal.2d 102.) SERIOUS AND WILLFUL MISCONDUCT - Labor Code §4553–In the context of an alleged failure to act for employee safety, an employer guilty of serious and willful misconduct must (1) know of the dangerous condition, (2) know that the probable consequences of its continuance will involve injury to an employee, and deliberately fail to take corrective action. (See Johns-Manville Sales Corp. v. Workers' Comp. Appeals Bd. (1979) 96 Cal.App.3d 923.) Elk Grove Unified School District v. Workers' Compensation Appeals Board (Janet Stroth) 9 WCAB Rptr. 10,147 ___Cal.App.4th___

SERIOUS AND WILLFUL MISCONDUCT - Labor Code §4553-The serious and willful cause of action accrues at the time of injury, and compensation shall be paid to the personal representative or heir, if there are no dependents, pursuant to Labor Code §4700. [Writ Denied]

SERIOUS AND WILLFUL MISCONDUCT - Labor Code §4553-Where a serious and willful misconduct award of increased compensation is challenged by the employer for exceeding the injured worker's potential civil tort recovery, the Appeals Board should adjudicate the question in much the same manner as in cases in which credit is claimed in a third-party action and employer negligence is an issue. In this situation, the general tort law, not workers' compensation law, defines the substantive law concerning recovery in a civil action. (See Ferguson v. Workers' Comp. Appeals Bd. (1995) 33 Cal.App.4th 1613.) Jason Tillery v. Workers' Compensation Appeals Board, Cranston Steel Structures, Labor Ready, Region Insurance Company 9 WCAB Rptr. 10,135[ Writ Denied]

SERIOUS AND WILLFUL MISCONDUCT - Labor Code §4553–When a school district knew that a student was a genuine risk of harm to students and staff and failed to take adequate measures to minimize or eliminate the danger presented by the student, was the school district's failure to act properly found to be serious and willful misconduct? Elk Grove Unified School District v. Workers' Compensation Appeals Board (Janet Stroth) 8 WCAB Rptr. 10,291 [Writ Granted]

SERIOUS AND WILLFUL MISCONDUCT– Labor Code §4553– Serious and willful misconduct can properly be found when the evidence establishes that the employer knew of the dangerous condition, that the probable consequences of its continuance would involve serious injury to an employee, and the employer deliberately failed to take corrective action. (See Rogers Materials Co. v. Industrial Acc. Comm. (Drake) (1965) 63 Cal.2d 717.) [In this case, the employer knew that more falls were likely because five falls already had happened in the previous six months, and the employer had taken no corrective action and had reprimanded employees when they took corrective action.] Meadowwood Resort Hotel v. Workers' Compensation Appeals Board (Barbara Wallace) 7 WCAB Rptr. 10,360 [Writ Denied]

SERIOUS AND WILLFUL MISCONDUCT– Labor Code §4553– Elements required to show serious and willful misconduct on the part of the employer: (1) an action taken by, on behalf of, or attributable to the employer; (2) that such action was the proximate cause of the injury complained of; (3) that the act of the employer was performed either with knowledge that serious injury was a probable result or with positive, active, wanton, reckless and absolute disregard for its possible damaging consequences (See Mercer-Fraser Company v. Ind. Acc. Comm. (1953) 40 Cal.2nd 102) or that the employer deliberately failed to act for the safety of his employees, knowing that his failure would probably result in injury to them. (See Rogers Materials Company v. Ind. Acc. Comm. (Drake) (1965) 63 Cal.2d 717.) [In this case, a serious and willful violation was proven when the employer read the Material Safety Data Sheet for a lacquer thinner, placed the employee at risk by requiring him to use the highly flammable, explosive and inherently dangerous product for a purpose it was not intended for, in a questionably ventilated space with a source of ignition that resulted in a flash explosion that seriously burned the employee.] Swenson Oaks Apartments v. Workers' Compensation Appeals Board (Maurice Peoples) 7 WCAB Rptr. 10,171

SERIOUS AND WILLFUL MISCONDUCT– Labor Code §4553– To establish a claim for serious and willful misconduct for violation of a safety order, the injured worker must demonstrate that the conditions making the safety order applicable were either known or obvious to the employer. (See Wolters v. Industrial Acc. Com. McGee) (1963) 223 Cal.App.2d 136.) Barry Babij/Babij Construction Inc. v. Workers' Compensation Appeals Board (Adam Nunez) 7 WCAB Rptr. 10,154

SERIOUS AND WILLFUL MISCONDUCT– Labor Code §4553– Without establishing a known danger with probable consequences, and in the absence of any history or prior complaints based on objective factors, a serious and willful misconduct finding may not be justified. (See Ann M. v. Pacific Plaza Shopping Center (1993) 6 Cal.4th 666; Arendel v. Auto Parts Club, Inc. (1934) 29 Cal.App.4th 1261.) April Deseive v. Workers' Compensation Appeals Board, Check into Cash of California, Inc. 7 WCAB Rptr. 10,025

SERIOUS AND WILLFUL MISCONDUCT– Labor Code §4553– There are three alternative bases for the charge of serious and willful misconduct: (1) a deliberate act for the purpose of injuring another, (2) an intentional act with knowledge that serious injury is a probable result, or (3) an intentional act with positive and reckless disregard of its possible consequence. All three alternatives require some awareness of danger on the employer's part. (See Mercer-Fraser Co. v. Industrial Acc. Comm. (Soden) (1953) 40 Cal.2d 102.) [In this case, the employer's failure to provide applicant with a suitable stool may have been negligent but was not conduct approaching intentional harm and deliberate disregard for the potential consequences of the conduct or its failure to act.] Mary Anne Silva v. Workers' Compensation Appeals Board, Wal-Mart 6 WCAB Rptr. 10,319

SERIOUS AND WILLFUL MISCONDUCT– To establish serious and willful misconduct based on an employer's violation of the general duty to provide a safe place of work, the employee must establish: (1) the employer actually knew of the dangerous condition; (2) the employer knew that the probable consequence of the dangerous condition's continuance would be serious injury to an employee; and (3) the employer deliberately or intentionally failed to take appropriate corrective action. (See Johns-Manville Sales Corp v. Workers' Comp. Appeals Bd. (Horenberger) (1979) 96 Cal.App.3d 923.) McClinton Hamilton v. Workers' Compensation Appeals Board, Mobil Oil Corporation. 6 WCAB Rptr. 10,174

SERIOUS AND WILLFUL MISCONDUCT– Labor Code §4553– Serious and willful misconduct is an act deliberately done for the express purpose of injuring another, or intentionally performed whether with knowledge that serious injury is a probable result or with a positive, active, wanton, reckless and absolute disregard of its possible damaging consequences. (See Ferguson v. Workers' Comp. Appeals Bd. (1995) 33 Cal.App.4th 1613. Earl Linam v. Workers' Compensation Appeals Board, Dennis Carey. 6 WCAB Rptr. 10,132

SERIOUS AND WILLFUL MISCONDUCT– Labor Code §4553.1– Violation of a Safety Order– To find that an employer engaged in serious and willful misconduct when the employer violated a safety order, it must be shown: (1) the specific manner in which the order was violated; (2) that the violation of the safety order did proximately cause the injury or death, and the specific manner, which the violation constituted the proximate case; (3) that the violation of the safety order, and the conditions making the safety order applicable, were known to, and violated by, a particular named person, either the employer or a representative or that the condition making the safety order applicable was obvious, created a probability of serious injury, and that the failure of the employer, or a representative to correct the condition constituted a reckless disregard for the probable consequences. Earl Linam v. Workers' Compensation Appeals Board, Dennis Carey. 6 WCAB Rptr. 10,132

SERIOUS AND WILLFUL MISCONDUCT– Labor Code §4553– To support a finding of an employer's serious and willful misconduct, it must be shown that the employee was subjected to not only a dangerous condition, but also that the employer or the employer's managing representative in fact knew of the existence of the dangerous condition. (See Rogers Materials Co. v. Ind. Acc. Comm. (Drake) (1965) 63 Cal.2d 717.) [In this case the employer had knowledge that the drains were backing up due to grease, fellow workers had complained of the problem for over eight months prior to the injury in question and there were discussions about this problem in safety meetings which resulted in the employer's engineering department inspecting the area and making recommendations but no repairs were carried out.] Khatchik Yeressian v. Workers' Compensation Appeals Board, Ralph's Grocery Company. 6 WCAB Rptr. 10,109

SERIOUS AND WILLFUL MISCONDUCT– Labor Code §6400– Serious and willful misconduct of the employer is an intentional act, or failure to act, with knowledge that serious injury will be the probable result. (See Mercer-Frazer v. Industrial Accident Com. (Soden) (1953) 40 Cal.2d 102.) The applicant must establish that the employer (1) knew of the dangerous condition; (2) knew that the probable consequences of its continued existence would involve serious injury to the employee, having 'turned his mind' to the existence of a danger to the employees; and (3) deliberately failed to take corrective action. (See Abron v. Workmen's Comp. Appeals Bd. (1973) 34 Cal.App.3d 232.) Sharon Causer v. Workers' Compensation Appeals Board, The Boeing Company. 5 WCAB Rptr. 10,227

SERIOUS AND WILLFUL MISCONDUCT– Safe place to work– Labor Code §6403– The Labor Code requires only that the employer use measures that are reasonably adequate or necessary to render the employment and place of employment safe. The test for determining whether the employer has provided safe employment and a safe place of employment is what is reasonable under the circumstances. (See American Smelting & Refining Co. v. Workers' Comp. Appeals Bd. (Fael) (1978) 79 Cal.App.3d 615.) Sharon Causer v. Workers' Compensation Appeals Board, The Boeing Company. 5 WCAB Rptr. 10,227

SERIOUS AND WILLFUL MISCONDUCT– Labor Code §4553– To establish a claim for serious and willful misconduct the injured worker must establish: (1) the employer's actual knowledge of a dangerous condition; (2) the employer's failure to correct the situation; and (3) a showing that the failure caused the injury. (See Bekins Moving and Storage v. Workers' Comp. Appeals Bd. (1980) 103 Cal.App.3d 675.) [In this case, the injured workers sustained psychiatric injuries as a result of a robbery at their workplace but failed to present evidence that failure to install surveillance cameras after a robbery would have prevented the subsequent robbery.] Stacy Pfister, Jennifer Bond v. Workers' Compensation Appeals Board, Crescent Jewelers. 5 WCAB Rptr. 10,178

SERIOUS AND WILLFUL MISCONDUCT– Labor Code §4453– To establish a violation of Labor Code §4553 for failure to provide a safe place to work, the injured worker must prove that the unsafe condition or practice was the proximate cause of the injury. In addition, the injured worker must prove that the employer actually knew of the dangerous condition, that the employer knew of the probable consequence that its continuance would involve serious injury to an employee, and that the employer deliberately failed to take correction action. (See Johns-Manville Sales Corp. v. Workers' Comp. Appeals Bd. (Horenbeger) (1979) 96 Cal.App. 3d 923.) [In this case, the WCAB panel reversed a WCJ's finding of serious and willful misconduct, concluding that the mere presence of an "Extended Outpatient Psychiatric" inmate in the general prison population was not sufficient to establish defendant's serious and willful misconduct as the proximate cause of applicant's injury.] Mark Slocum v. Workers' Compensation Appeals Board, Department of Corrections. 5 WCAB Rptr. 10,083

SERIOUS AND WILLFUL MISCONDUCT– Labor Code §4553– To constitute willful misconduct there must be actual knowledge, or what in the law is deemed to be equivalent of actual knowledge, or the peril to be apprehended from the failure to act to the end of averting injury. (See Bekins Moving and Storage Company v. Workers' Comp. Appeals Bd. (Garner) (1980) 103 Cal.App.3d 675.) [In this case, each time the employer found that someone had overridden the safety features on an elevator, the employer removed the overriding device and instructed the employees not to override the safety features.] Mary Logan v. Workers' Compensation Appeals Board, Bellevue-Staten Condominium Association. 5 WCAB Rptr. 10,017

SERIOUS AND WILLFUL MISCONDUCT– Labor Code §4553– To support a finding of serious and willful misconduct, the record must demonstrate employer conduct that is quasi-criminal in nature, or intentional doing of something either with the knowledge that it is likely to result in serious injury, or with a wanton and reckless disregard of its possible consequences. Independent Construction Company v. Workers' Compensation Appeals Board (Kevin Cook) 5 WCAB Rptr. 10,014

SERIOUS AND WILLFUL MISCONDUCT– Violation of a safety order– Labor Code §4553.1– To support a finding of serious and willful misconduct by an employer based on a violation of a safety order, all of the following must be proven: 1) the specific manner in which the order was violated, (2) the violation of the safety order proximately caused the injury or death, and the specific manner in which the violation constituted the proximate cause, (3) the safety order, and the conditions making the safety order applicable were known to, and violated by, a particular named person, either the employer, or a representative designated by section 4553, or that the condition making the safety order applicable was obvious, created a probability of serious injury, and that the failure of the employer or his representative to correct the condition constituted a reckless disregard for the probable consequences. Independent Construction Company v. Workers' Compensation Appeals Board (Kevin Cook) 5 WCAB Rptr. 10,014

SERIOUS AND WILLFUL MISCONDUCT– Labor Code §4553– To prove serious and willful misconduct on the part of an employer, an injured worker must show that a dangerous condition known to the employer existed; that the dangerous condition caused the injury; and that the action or inaction of the employer must rise beyond mere negligence. (See Mercer-Fraser Co. v. Industrial Acc. Com. (Soden) (1953) 40 Cal.2d 102.) An act which is merely negligent and consequently devoid of either an intention to do harm or of knowledge or appreciation of the fact that danger is likely to result therefrom cannot at the same time constitute willful misconduct. Jeannie Laura Carpenter v. Workers' Compensation Appeals Board, Burger King. 4 WCAB Rptr. 10,304

SERIOUS AND WILLFUL MISCONDUCT– Labor Code §4553– When knowledge or appreciation of a dangerous condition is established, the employer's deliberate act or it failure to act to correct the unsafe condition constitutes serious and willful misconduct. (See Ferguson v. Workers' Comp. Appeals Bd. (1995) 33 Cal.App.4th 469, see also, Rogers Materials Co. v. Industrial Accident Comm. (Drake) (1965) 63 C. 2d 717.) [In this case, the employer had received complaints about the shower floor in a firehouse and had installed non-skid tape which needed periodic replacing. The failure to replace the non-skid tape after routine inspections constituted serious and willful misconduct.] City of Torrance v. Workers' Compensation Appeals Board (Ralph Moore) 4 WCAB Rptr. 10,238

SERIOUS AND WILLFUL MISCONDUCT– Violation of a safety order– Labor Code §4553.1– The terms serious and willful have a different meaning in the workers' compensation context than in the enforcement of Cal'OSHA citations for violation of safety orders.To find a serious violation of a safety order, an ALJ of the Occupational Safety and Health Appeals Board need only find that the employer could have known of the dangerous condition with the exercise of reasonable diligence. In a workers compensation matter, the WCJ must find that the employer's failure to correct the condition constituted reckless disregard for probable consequences.] (Mercer-Fraser Co. v. Industrial Acc. Com. (1953) 40 Cal.2d 102.) Steven Boswell v. Workers' Compensation Appeals Board, Travelers Insurance Co. 4 WCAB Rptr. 10,108

SERIOUS AND WILLFUL MISCONDUCT– Labor Code §4553– Violation of Safety Orders– The violation of a safety order is not automatically serious and willful misconduct. (See Ethel D. Co. v. Industrial Acc. Com. (1934) 219 Cal. 699.) Where a failure to comply with safety orders results from the actions of an employee, who unnecessarily exposes himself to danger, additional compensation may not be recovered on the ground the employee was guilty of willful misconduct. (See Folsom v. Industrial Acc. Com. (1934) 3 Cal.App.2d 282.) Eric Huber v. Workers' Compensation Appeals Board, Sundance Natural Foods Co. 4 WCAB Rptr. 10,072

SERIOUS AND WILLFUL MISCONDUCT– Labor Code §4553– Serious and willful misconduct is an intentional act, of failure to act, with knowledge that serious injury will be the probable result, and it requires a high degree of employer fault, surpassing even gross negligence. (See Ferguson v. Workers' Comp. Appeals Bd. (1995) 33 Cal.App.4th 1613.) The act must be deliberately done for the express purpose of injuring another, or intentionally performed either with knowledge that serious injury is a probable result or with a positive, active, wanton, reckless and absolute disregard of the possibility for damaging consequences. (See Mercer-Fraser v. Industrial Acc. Com. (1953) 40 Cal.2d 102.) In establishing serious and willful misconduct, there must be a showing that the employer (1) knew of the dangerous condition, (2) knew that the probable consequences of its continuance would involved serious injury to the employee, and (3) deliberately failed to take corrective action. (See Johns-Manville Sales Corp v. Workers' Comp. Appeals Bd. (Horenberger) (1979) 96 Cal.App.3d 923.) James Thompson v. Workers' Compensation Appeals Board, Shea-Kiewit-Kinney. 4 WCAB Rptr. 10,038

SERIOUS AND WILLFUL MISCONDUCT– Based on alleged violations of the occupational safety and health standards– Labor Code §4553.1– The elements necessary to support a finding of serious and willful misconduct under Labor Code §4553.1, there must be evidence (1) of the specific manner in which a health and safety order was violated, (2) evidence that the violation of the specified order was the proximate cause of the applicant's injury, and (3) evidence that the defendant was aware of the order and recklessly disregarded the probable consequences of such violation. James Thompson v. Workers' Compensation Appeals Board, Shea-Kiewit-Kinney. 4 WCAB Rptr. 10,038

SERIOUS AND WILLFUL MISCONDUCT– Labor Code §4553– As a general rule, an employer who takes reasonable precautions cannot be found liable for serious and willful misconduct even if the precautions turn out to be inadequate. (See Hawaiian Pineapple Co. v. Ind. Acc. Com. (1953) 40 Cal. 2d 656.) James Thompson v. Workers' Compensation Appeals Board, Shea-Kiewit-Kinney. 4 WCAB Rptr. 10,038

SERIOUS AND WILLFUL MISCONDUCT– Labor Code §4553– In order to establish liability for serious and willful misconduct, there must be proof that the employer knew of the dangerous condition, that the employer knew of the probable consequence that its continuance would involve serious injury to an employee, and that the employer deliberately failed to take corrective action. (See Johns-Manville Sales Corp v. Workers' Comp. Appeals Bd. (Horenbeger)(1979) 96 Cal.App.3d 923.) [In this case the applicant failed to meet his burden of proving the elements necessary to establish serious and willful misconduct. The OSHA inspector issued a general citation rather than a serious citation because the second element of a serious citation is that the employer could have, with reasonable diligence, known of the violation, which includes that the employer knew or with reasonable diligence should have known of the violation.] John M. Frederickson v. Workers' Compensation Appeals Board, Parr Lumber Company. 3 WCAB Rptr. 10,357

SERIOUS AND WILLFUL MISCONDUCT– Labor Code §4553– The term 'serious and willful misconduct' is described as being something much more than mere negligence, or even gross or culpable negligence and as involving conduct of a quasi-criminal nature, the intentional doing of and something either with knowledge that it is likely to result in serious injury, or with a wanton and reckless disregard of its possible consequences. (See Mercer-Fraser Co. v. Industrial Accident Com. (Soden) (1953) 40 Cal.2d 102.) Ismael Macias v. Workers' Compensation Appeals Board, Griffith Company. 3 WCAB Rptr. 10,289

SERIOUS AND WILLFUL MISCONDUCT– Labor Code §4553– An employer commits willful misconduct when he turns this mind to the fact that injury to his employees will probably result from his acts or omissions, but he nevertheless deliberately fails to take appropriate precautions for their safety. [In this case the applicant was instructed to make the guards on power saws ineffective and non-operative.] (See Rogers v. Materials Company v. Industrial Acc. Comm. (Drake) (1965) 63 Cal.2d 717.) Proffer Construction, Inc., v. Workers' Compensation Appeals Board (Carlos Pesqueira) 3 WCAB Rptr. 10,261

SERIOUS AND WILLFUL MISCONDUCT– Labor Code §4553– Knowledge of the unsafe condition or practice on the part of the employer or its managing representative must be proven. This knowledge may be established by circumstantial evidence and is not dependent on the employer's admission of such knowledge. (See Dowden v. Industrial Acc. Comm. (1963) 223 Cal.App.2d 124.) Proffer Construction, Inc., v. Workers' Compensation Appeals Board (Carlos Pesqueira) 3 WCAB Rptr. 10,261

SERIOUS AND WILLFUL MISCONDUCT– Labor Code §4553– An award of increased compensation for serious and willful misconduct under Labor Code §4553 may be made only in the event of an exceptionally high degree of employer fault, surpassing even gross negligence. (See Ferguson v. Workers' Com. Appeals Bd. (1995) 33 Cal.App.4th 1613.) The Pacific Lumber Company v. Workers' Compensation Appeals Board (Royce King) 3 WCAB Rptr. 10,246

SERIOUS AND WILLFUL MISCONDUCT– Labor Code §4553– Serious and willful misconduct may be based on the employer's general duty, pursuant to Labor Code §6400-6404, to provide a safe place to work. In order to prove such serious and willful misconduct an applicant must show that the employer knew of a dangerous condition, and of it probable consequences, and deliberately failed to take corrective action. (See Johns-Manville Sales Corp. v. Workers' Comp. Appeals Bd. (Horenberger) (1979) 96 Cal.App.3d 923.) The Balboa Bay Club v. Workers' Compensation Appeals Board (Anthony Rocco) 3 WCAB Rptr. 10,202

SERIOUS AND WILLFUL MISCONDUCT– Labor Code §4553– Circumstantial evidence may establish an employer's knowledge even in the face of the employer's disclaimer or knowledge. (See Dowden v. Ind. Acc. Com. (1963) 223 Cal.App.2d 124). The Balboa Bay Club v. Workers' Compensation Appeals Board (Anthony Rocco) 3 WCAB Rptr. 10,202

SERIOUS AND WILLFUL MISCONDUCT– Labor Code §4553– Serious and willful misconduct of the employer is defined as an intentional act, or failure to act with knowledge that serious injury will be the probable result. [In this case the allegation of that the employer had not replaced the worn carpeting in the area where the applicant tripped and fell did not exceed the definition of gross negligence or be equated to quasi-criminal conduct.] (See Mercer-Fraser v. Industrial Acc. Com. (Soden) (1953) 40 C.2d 102.) Laura Driver v. Workers' Compensation Appeals Board, Fresno Unified School District) 3 WCAB Rptr. 10,173

SERIOUS AND WILLFUL MISCONDUCT– Labor Code §4553– A corporation is not insulated from responsibility for the serious and willful misconduct of a supervisory employee to whom the corporation has delegated general discretionary poser of direction. (See Vega Aircraft v. Industrial. Acc. Com. (Nielsen) (1946 27 Cal.2d 529.) United Parcel Service v. Workers' Compensation Appeals Board (Tracey Walsh) 3 WCAB Rptr. 10,072

SERIOUS AND WILLFUL MISCONDUCT– Labor Code §4553– Supervisory employees may include a foreman, an assistant foreman or a group leader when it is established that the "general discretionary powers of direction and control" have been delegated. (See California Shipbuilding Corp. v. Industrial Acc. Com. (Baker) (1946) 27 Cal.2d 536.) United Parcel Service v. Workers' Compensation Appeals Board (Tracey Walsh) 3 WCAB Rptr. 10,072

SERIOUS AND WILLFUL MISCONDUCT– Labor Code §4553– The elements of serious and willful misconduct are (1) employer's actual knowledge of the dangerous condition, (2) employer's knowledge that the probable consequence of the continuance of that dangerous condition would result in serious injury to an employee, and (3) deliberate failure to take corrective action. (See Johns-Manville Sales Corp v. Workers' Comp. Appeals Bd. (1979) 96 Cal.App.3d 923. Linens N' Things v. Workers' Compensation Appeals Board (Patricia Wiseman) 3 WCAB Rptr. 10,060

SERIOUS AND WILLFUL MISCONDUCT– Testimony of CAL OSHA safety inspector– In this case the testimony of the CAL OSHA safety inspector and the admission in evidence of the CAL OSHA report was proper to rebut the testimony of the employer regarding the employer's knowledge of and allowance of the dangerous practice which was the proximate cause of applicant's injury and which wa the subject of the CAL OSHA violation. Braga Ranch v. Workers' Compensation Appeals Board (Victor Santos) 3 WCAB Rptr. 10,045