# Bekins Moving & Storage Co. v. Workers' Compensation Appeals Board > California Court of Appeal · March 24, 1980 · 103 Cal. App. 3d 675 URL: https://www.frixlaw.com/law-library/cases/9721482 ## Case - **Full name:** BEKINS MOVING & STORAGE COMPANY, Petitioner, v. WORKERS' COMPENSATION APPEALS BOARD and GLEN D. GARNER, Respondents - **Court:** California Court of Appeal - **Decided:** March 24, 1980 - **Citations:** 103 Cal. App. 3d 675; 163 Cal. Rptr. 213; 45 Cal. Comp. Cases 256; 1980 Cal. App. LEXIS 1616 - **Precedential status:** Published - **Opinion:** Dissent by Christian - **Judges:** Caldecott, Christian - **Cited by:** 5 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9721482 ## Opinion text CHRISTIAN, J. I respectfully dissent from that portion of the majority opinion which upholds the imposition of penalties on Bekins for unreasonable delay in payment and for serious and wilful misconduct. Bekins contested the issue of industrial injury on the basis of the report of applicant’s coworker, Verdo Bridges, that he saw applicant kick the walkboard and then jump to the ground while carrying nothing. Bridges did not appear at the hearing but it was stipulated that he *686 would testify as recited above. I agree with the majority that this stipulation did not require the workers’ compensation judge to interpret Bridges’ testimony in any particular way or even to credit its truth; the judge was merely required to accept the fact that Bridges would so testify. The judge acted within his role as fact finder when he chose to reconcile Bridges’ testimony and applicant’s testimony. He did this by disregarding as insignificant the conflict as to whether applicant was carrying anything when he jumped or fell. He then noted that the crucial question was whether the injuries were self-inflicted and that Bridges’ testimony did not establish this to his satisfaction. The judge, whose reasoning was accepted by the board, explained that he regarded the conflicts “as really semantic in nature. Whether the applicant’s toe kicked the walkboard loose causing him to fall or whether he lost his balance and fell, his injuries are to be industrially compensated unless they were self-inflicted.” The board was entitled to accept this analysis; there was accordingly substantial evidence to support a finding of an industrial injury. This analysis, however, is not the only reasonable interpretation of the evidence. Bridges’ report of the incident was directly at odds with applicant’s and, though the two reports could be reconciled by ignoring inconsistencies and the ordinary volitional distinction between “fall” and “jump,” Bekins was not required to do so in investigating the incident. Nor was Bekins required to accept applicant’s version. Taken at face value, Bridges’ report would sustain a conclusion that applicant’s injuries, if any, were self-inflicted or that there was no injury at all. Bekins showed that it had a report from the sole witness of the incident that could reasonably support the conclusion that applicant’s claim was unjustified. Given this fact, there is no basis for the board’s conclusion that Bekins did not entertain a genuine doubt as to whether it was legally required to grant benefits. I would hold that the imposition of penalties under section 5814 was error. (See City of California City v. Workers' Comp. Appeals Bd. (1979) 95 Cal.App.3d 329 [ 157 Cal.Rptr. 137 ].) The imposition of extra compensation for serious and wilful misconduct also was unjustified. The only evidence supporting such an award is the undisputed fact that applicant had repeatedly expressed his view that the walkboards were dangerous unless secured by a coupling device. There is no evidence of similar accidents and no evidence that anyone else had expressed concern. Unlike the majority, I do not regard *687 this record as representing a credibility determination. Both parties agreed that applicant told Mr. Cloward that he thought the walkboard unsafe and Cloward’s testimony that he did not agree was also undisputed. Thus, the issue comes down to whether it was serious and wilful misconduct for Cloward not to take action in response to applicant’s complaints despite his own judgment to the contrary. The lips on Bekins’ walkboards had already been extended from three and one-half inches to seven inches as a safety measure when the type of trailers used by Bekins was changed. Two of the 40 or 50 walkboards had not been extended and management had directed that they were not to be used. Applicant was injured when using a short-lipped walk-board. There is no suggestion as to the reason applicant was using a walkboard with a short lip. It seems clear to me, however, that Bekins had considered the safety of the walkboards and had taken steps to enhance their safety. That the steps taken were not those suggested by applicant does not, on this record, show serious and wilful misconduct. I would annul the decision of the board insofar as it imposes penalties on Bekins for unreasonable delay in payment and for serious and wilful misconduct. A petition for a rehearing was denied April 22, 1980. Christian, J., was of the opinion that the petition should be granted. Petitioner’s application for a hearing by the Supreme Court was denied May 28, 1980. Richardson, J., did not participate therein. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9721482. Public record. Not legal advice.