Company's failure to have spotter for excavator boosts worker's benefits
Case name: C.C. Myers, Inc. v. Workers' Compensation Appeals Board, No. C067528 (Cal. Ct. App. 01/27/12).
Ruling: The California Court of Appeal held that a construction company engaged in serious and willful misconduct that resulted in a worker's injury, entitling him to an increase in his workers' compensation benefits.
What it means: In California, a construction company's failure to provide a spotter to help direct the movement of construction equipment may amount to serious and willful misconduct that will entitle an injured worker to increased benefits.
Summary: A construction worker was engaged in placing shell shoring plates along the walls of a hole that had been excavated earlier. The foreman assisted the driver of the excavator in positioning the plates. The crew worked for more than 13 hours, and it was starting to get dark. The foreman had his back to the worker and was waiting for the excavator to bring a plate over. The foreman did not realize that the worker kneeled down to push a rock into the hole. As he did, the excavator moved toward him. The foreman did not look around to make sure the way was clear. The excavator ran over the worker's foot. His injury was so severe that his leg had to be amputated below the knee.
The worker received temporary disability benefits and permanent disability benefits. He sought increased benefits based on the construction company's serious and willful misconduct of not having a spotter for the excavator. The California Court of Appeal held that he was entitled to increased benefits.
The court concluded that the foreman "turned his mind" to the danger posed by the use of an excavator and chose to proceed without a spotter. A union representative said that it was standard industry practice to use a spotter. The court noted that the worker was working in tight quarters, it was noisy, it was starting to get dark, and the crew had been working a long shift, and the crew needed to hurry and get the job done so the crew scheduled for the next day could work in the holes. The court pointed out that the foreman recognized the enhanced danger because he held an evening meeting to discuss the workers' need to remain "alert" and "aware."
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March 1, 2012
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