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Jorge Mora was working as a carpenter for CLP Resources Inc. in 2009 when he was directed to use a table saw unsecured to a base and lacking a protective guard. He stepped on debris, lost his balance, and placed his hand on the unguarded table saw blade. Mora sustained serious cuts to his left hand. Mora filed an application for an award under Labor Code section 4553, which grants additional benefits to a worker who is injured by the “serious and willful misconduct” of his employer. Mora’s first theory alleged the injury was due to the willful failure of the employer to provide a safe place of work. His second theory alleged that the employer had knowingly violated a safety order in directing this work.

Mora testified he had 13 to 15 years’ work experience as a carpenter. He began work for CLP, a temporary placement agency, in April 2008, and had been assigned to several different jobsites prior to his accident. Mora was supervised by Lieb, who provided his tools and told him what to do. CLP had instructed Mora to contact Marlo Vasquez, a CLP employee, if “here was a problem, or if anything was not right,” On direct examination, Mora testified he told Vasquez “here were a lot of things that were not right on the job site where he was working”and Vasquez “should check it out.” As Mora was about to list the specific safety problems, however, Vasquez told him “there was no work, and he should just be careful.” After that, Vasquez turned back to his computer and gave Mora no opportunity to provide more information. No one from CLP came to inspect the site. Mora acknowledged he had not told anyone at CLP specifically about the unsecured, unguarded table saw, although he said it was one of the safety problems he intended to discuss with Vasquez.

The only CLP employee to testify was a company safety official. He said CLP inspects the work sites of the contractors to whom its employees are assigned and had inspected the Lieb jobsite in October 2008, about two months prior to Mora’s injury. In the inspection, CLP had found no safety violations. If the unguarded table saw was present, it was not located by the inspector, although it had been “mentioned by the individuals who previously worked on the job site.” The employee speculated the inspector might have missed the table saw because Lieb removed his tools from the site each day to prevent theft.

CLP was cited by Cal-OSHA for having an inadequate injury and illness prevention program and for the hazardous state of the table saw. Cal-OSHA ultimately reduced the proposed penalty against CLP, possibly after concluding that CLP was unaware of the hazardous nature of the saw.

The WCJ found that Mora’s injury was proximately caused by the willful and serious misconduct of CLP and awarded appropriate damages under Labor Code section 4553. In explaining her decision, the WCJ found the use of an unguarded table saw to be “an inherently dangerous proposition” likely to cause serious injury and noted Cal-OSHA had cited both CLP and Lieb for use of the unsafe saw. Although she found “no clear evidence that management representatives at CLP . . . knowingly violated the safety order” and “no[] evidence that a CLP managing representative ‘turned his mind’ to the dangerous situation here.”

Reconsideration was denied. The Court of Appeal annulled the serious and willful award in the unpublished case of CLP Resources v. WCAB (Mora).

The mere failure to perform a statutory duty is not, alone, willful misconduct. It amounts only to simple negligence. To constitute ‘willful misconduct’ there must be actual knowledge, or that which in the law is esteemed to be 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. “The inadequate inspection cited by the WCJ and the Appeals Board as misconduct could not have constituted the type of intentional conduct required for liability under Labor Code section 4553.”