Serious and Willful Misconduct Filed by Tommy Jenkins

You remember Tommy Jenkins, don’t you?  He was your classmate in eighth grade who used to brag about how fast he could run.  When you didn’t believe that he was the fastest kid in school, he offered to prove it by pinching the neighborhood dog and outrunning him to the safety of the tree house.  Naturally, when Tommy got a cramp from all the candy he had been eating and ended up being bitten by the dog, he blamed you for putting him in the situation…

Tommy grew up and tried out for the Los Angeles Fire Department.  In the case of Michelle Mapstead v. Workers’ Compensation Appeals Board (writ denied), applicant filed a claim against the City of Los Angeles for her injuries sustained while involved in a firefighter training course.

Apparently she fell during an “up and over” exercise drill, sustaining injury to her back, chest, and respiratory system.  Although her case-in-chief settled, she continued to press her Serious and Willful claim against the City.

Serious and Willful misconduct, government primarily by Labor Code sections 4553 and 4553.1, requires the meeting of a fairly high standard for an applicant to meet in order to increase the amount of applicant’s recovery by 50%.  Basically, the employee needs to prove that the conduct of the employer, manager, or supervisor amounted to “an intentional act or an intentional failure to act, either with knowledge that serious injury is a probable result, or with a positive and active disregard for the consequences.”  (Johns-Manville Sales Corp. v. Workers’ Comp. Appeals Board)

Evidence presented at trial reflects that applicant had qualified for the firefighter program in 1994, but was put on the wait-list due to a hiring freeze.  She stopped keeping herself in that level of physical fitness about a year later, already giving up hope of ever being admitted into the program.  In 1998 she was offered enrollment into the program and she happily accepted, beginning the rigorous training program.

On the day of her injury, she was engaged in various drills, including the “up and over” drill.  As the various drills continued, she began to grow tired and feel weakness in her hands, although she kept this fact to herself and didn’t tell her supervisors.  Eventually, while climbing a 70-foot ladder as part of the drill, she fell and sustained her injury.

Her theory on the serious and willful claim, which probably had just enough merit to it to avoid a countersuit for malicious prosecution, was that the screening tests (like the one she passed in 1994) were inaccurate and that the Fire Department staff didn’t properly observe her to note her fatigue.

The workers’ compensation Judge, the WCAB, and the Court of Appeal all sided with the defense, reasoning that the conduct of the defendant was not malicious or reckless or intended to cause harm.  Applicant simply could not make the cut – she had done the same drill 18 times before, but was worn out by a mixture of other drills.

But let’s look at the other side of the argument.  Your humble blogger recognizes that as an attorney, his work does not often have the effect of life-and-death (there are rare moments when my expertise is sought to resolve knife-fights based on confusing Law and Order episodes, however).  But this is not the case for a firefighter – citizens depend on firefighters to protect their lives and property.  Firefighters depend on each other to get in effectively and get out safety.

Applicant failed to keep herself in proper physical shape to perform the job.  She failed to disclosure the physical limitations that developed between her physical screening and her entry into the academy.  She concealed her growing fatigue from her fellow trainees and instructors.

Had she, by some cruel twist of fate, become an active firefighter, who knows the lives and, of lesser importance, property that could have been lost through her unwillingness to communicate her limitations to her fellow firefighters.  And, after all this, she has the nerve to accuse the defendant of serious and willful misconduct.  Tommy Jenkins, alive and kicking.

Tommy Jenkins Returns – and Files a Lien

Do you remember Tommy Jenkins?  He was that annoying fifth-grade friend of yours.  He was that kid that was always the center of the world – everyone was just out to get him.  No matter what happened, it was all part of some effort by someone who “hated” him, especially the teacher (she was out to get him, you see).  As you know, Tommy grew up and became a lien representative in California’s workers’ compensation system.

In the case of Paul Allgood v. County of Los Angeles, the lien claimants, represented by Green Lien Collections, filed a petition to have the workers’ compensation Judge disqualified for bias.

At this point, your ever-realistic blogger must point out that everyone has a bias against lien claimants, including WCJs.  After all, lien claimants and WCJs are naturally enemies, just like lien claimants and applicant’s attorney, or lien claimants and defense lawyers, or lien claimants and other lien claimants.  If your garden variety bias served to disqualify WCJs, there would be no WCJs left to adjudicate these cases, and we would have to resort to picking champions and settling things via duels.

Basically, the matter was set for trial, and the WCJ ordered the matter continued and also ordered the doctor performing the services that were the basis of the lien to appear and testify at the continued trial.  The lien claimant petitioned for removal of the order and the order removal was granted.  The parties then returned for trial but the WCJ fell ill, so the trial was continued again.

The lien claimant was not fooled – he knows bias when he sees it!  The so-called “illness” was certainly a clever ploy to prejudice the lien claimant, because everyone knows that WCJs are impervious to injury and, having already waited for the case-in-chief to resolve, any further delay to lien claimant results in total destruction of its interests – lien claimant really needs that “355989” to keep the doors open.  (Apparently the lien is unclear as to whether the amount in question is $355,989.00 or $3,559.89.)

REAL bias is not a couple of continuances, as was the case here – the WCJ fell ill on the day of trial, what are you going to do?  In any case, the lien claimant’s efforts to have the judge disqualified only further delayed the matter by necessitating that the continued trial be cancelled and await resolution of the petition to disqualify.

Lien claimants are already establishing the image of actors pursuing frivolous actions or abusing process to shake down a settlement – now they are setting themselves up as cry-babies as well.  Say hello to Tommy Jenkins for me.

Not Giving Credit Where Credit is Due

Do you remember Tommy Jenkins?  He was your annoying friend in fifth grade.  He would sit next to you at lunch time, wanting to “share” your fruit snacks.  Of course, as soon as your fruit snacks were gone, Tommy would reach into his lunch box and pull out his chocolate covered wafers.

The nerve!  The gall!  THE CHUTZPAH!  Here is this kid enjoying the fruit snacks of your labor, the ones you begged your mom for and endured steamed vegetables to get.  And now you can’t even get a share of his chocolate treats.

Well, Tommy grew up, and eventually filed a workers’ compensation claim.  This time, however, he was not content with the money in his employer’s cookie jar, and wanted what was under its mattress as well.

In the case of State Compensation Insurance Fund v. Workers’ Compensation Appeals Board, defendant had advanced over $11,000 for a 2003 injury.  Following the enactment of SB899, the Workers’ Compensation Judge, awarded roughly $6,300 for the 2003 injury and $4,800 for the 2007 cumulative trauma.  (There was also a 2000 cumulative trauma, but that did not play an important role in this case).

Defendant sought credit, which the WCJ allowed.  But at that point, applicant petitioned for reconsideration. Recognize the chutzpah?  Already, applicant has gotten more money than he is entitled to, and now he wants to go deeper into the defendant’s pocket and get more!

In a decision based seemingly on some warped perception of “fairness,” the WCAB granted applicant’s petition, reasoning that defendant should not get the benefit of both apportionment and credit.  (Folks – I’m not making this up, this was the reasoning!)  The WCAB also expressed concern that an alternative result would leave the applicant with no “new money” for his 2007 injury.

I can only hope that this was just a “bad day at the Board” situation, and we won’t have to see similar decisions again.  Of course, hope and four quarters will buy you a dollar’s worth of lobbying money with which to change the law.