## Facts

- Paul Hunt, an ironworker, was injured during a refinery shutdown job where Bigge Crane supplied a truck crane and operator Mark Mom.
- Bigge’s general foreman, Curtis Embry, assigned Hunt and other ironworkers to help Mom dismantle (“rig out”) the crane, including removing boom sections.
- An assistant (oiler), Dave McGarry, initially helped Mom, but Embry and McGarry later left to address work on another crane.
- One boom section had been blocked; blocking materials were available at the site.
- With Hunt assisting, Mom proceeded to remove a bottom pin from the next boom section; the section was not adequately supported.
- When the pin was removed, the boom section dropped several inches onto Hunt’s lower leg and ankle, causing serious injury.
- Hunt sought a 50% increase in compensation under Labor Code § 4553, alleging “serious and willful misconduct” by Bigge through managing representatives (Mom and Embry), including failure to ensure proper blocking and alleged safety-order violations.

## Issues

1. Whether the crane operator, Mom, was a “managing representative” under Labor Code § 4553 such that his conduct could support a serious-and-willful penalty against the employer.
2. Whether Embry, even if treated as a managing representative, engaged in “serious and willful misconduct” under § 4553.

## Decision

- The Court of Appeal held Mom was not a “managing representative” for purposes of § 4553.
- The court held that, even assuming Embry was a managing representative, the record did not establish “serious and willful misconduct.”
- The court annulled the WCAB’s award of increased compensation under § 4553.

## Legal Principles

- A “managing representative” under Labor Code § 4553 is a person entrusted with general discretionary authority and control over a department or substantial part of the employer’s business, standing in the place of the employer; task-level control over how to perform a specific job is insufficient.
- “Serious and willful misconduct” requires more than negligence or gross negligence; it requires actual knowledge of a dangerous condition and a conscious, deliberate failure to act, reflecting a quasi-criminal indifference to safety.
- A safety-order violation, without proof of the required mental state, does not by itself establish serious and willful misconduct.
- Because § 4553 imposes a penalty, it is strictly construed; prior safety citations matter only if tied to knowing disregard of a closely related hazard causing the injury.

## Conclusion

The court set aside the § 4553 penalty because the crane operator’s authority was operational rather than managerial, and the foreman’s conduct showed, at most, negligence rather than a knowing and deliberate disregard for worker safety.


Bigge Crane & Rigging Co. v. Workers' Comp. Appeals Bd., 188 Cal. App. 4th 1330, 116 Cal. Rptr. 3d 153 (Ct. App. 2010)