ADJ12410207 · May 3, 2024

The injury occurred while the applicant was on an employer-designated parking lot during an employer-approved lunch break, and the injury arose from a risk connected with employment, not horseplay or negligence.

From the decision · page 1In the Findings and Order of February 5, 2021, the Workers' Compensation Administrative Law Judge ("WCJ") found that applicant, while working as a utility worker for FCEC/SMG, sustained injury (arising out of and occurring in the course of employment) to his left ankle and left arm, as a result of falling from a forklift on May 23, 2019. In addition, the WCJ found that "applicant asked a forklift operator co-employee to give him a ride to his car in the parking lot so he could retrieve his lunch," that "as a result of actions of a co-employee, applicant was thrown off the forklift, sustaining injury to his left ankle and left arm," that the "employer has denied the claim in its entirety," that "applicant sustained his injuries on employer's premises (i.e., the parking lot adjacent to the Convention Center), therefore he was within the curtilage of the building in which he worked, which was thus under employer's exclusive control," that "the co-employee, who was a trained and certificated forklift driver, gave the co-employee superior knowledge as to the safe operation of the forklift," that "aside from the self-serving testimony of employer's operations manager, no corroborating evidence was presented as to safety meeting discussions regarding the safe use of forklifts," that "applicant's testimony, therefore, that he received no such

Applicant was injured while riding a forklift to retrieve lunch from his car parked in an employer-designated lot during an employer-approved lunch break.

Favours Applicant prevailed

This established that the injury arose out of and occurred in the course of employment.

From the decision · page 4In this case, the evidence establishes that the danger that gave rise to applicant's injury is a danger he was exposed to in his employment. By reason of his employment, applicant was entitled to an unpaid thirty-minute lunchbreak; he was injured while hitching a ride on a forklift to retrieve his lunch from his car, parked in an area designated by the employer. Applicant intended to return to the employer-provided break room to eat his lunch. These factual circumstances are sufficient to establish that the danger from which applicant's injury resulted is one he was exposed to by reason of his employment.

Applicant's act of riding the forklift was against employer rules but did not constitute horseplay or a substantial deviation from employment.

Favours Applicant prevailed

This supported the finding that the injury was compensable despite the violation of employer policy.

From the decision · page 6The facts of the instant case are significantly different. Applicant did not ask his coworker for a ride on the forklift for fun or merely to satisfy curiosity. As the employer's breakroom was insecure, applicant kept his lunch in his car and rode the forklift in the employer's designated lot to quickly retrieve his lunch to return to the breakroom for a 30-minute lunch break with dry feet. The fact that riding the forklift was against the employer's rules did not take applicant outside the course of employment. (Williams v. Workers' Comp. Appeals Bd. (1974) 41 Cal.App.3d 937

Contributory negligence is not a valid defense in workers' compensation cases.

Favours Applicant prevailed

This led to rejection of defendant's negligence defense and affirmed compensability.

From the decision · page 4To the extent the WCJ relied on Smith as factually similar to this case, we do not adopt or incorporate the WCJ's analysis. However, Smith is notable and relevant here for the Supreme Court's clear statement that an injured employee's alleged negligence in sustaining an injury at work is "no defense" in a workers' compensation case. (Smith, supra,18 Cal.2d at pp. 850-851.) In other words, workers' compensation is a no-fault system. In this case, therefore, defendant cannot prevail by raising an inapplicable negligence defense and then allege that the WCJ erred in rejecting the defense. Contrary to the implication of defendant's petition for reconsideration, applicant's supposed negligence in contributing to his own injury by riding the forklift is not a valid defense.

South Coast Framing v. Workers' Comp. Appeals Bd. (2015) 61 Cal.4th 291

Injury arises out of and in the course of employment if the danger causing injury is one to which the employee was exposed by reason of employment.

The injury occurred on employer premises during an authorized lunch break, establishing exposure to employment risk.

From the decision · page 4In order to support a finding that an injury arose out of employment under Labor Code section 3600, the injured employee must establish that the employment and the injury are linked in some causal fashion, i.e., the danger from which the employee's injury resulted is one to which he was exposed in his employment. (South Coast Framing v. Workers' Comp. Appeals. Bd. (2015) 61 Cal.4th 291, 297 [80 Cal.Comp.Cases 489].)

Smith v. Industrial Acci. Com. (1943) 18 Cal.2d 843

Contributory negligence is not a defense in workers' compensation cases.

The Board rejected defendant's negligence defense and affirmed compensability despite employer rules forbidding riding forklifts.

From the decision · page 4In Smith, the injured employee was a road worker on Treasure Island in San Francisco Bay. He was injured when he jumped off a truck on its way from his employer's administration building on the island to a ferry terminal from which the employee would disembark to ride a ferry back home to San Francisco. The truck from which the injured employee jumped was not provided by his employer, but his employer paid the injured employee's fare to ride the ferry home. In Smith, the Supreme Court found that the injury occurred in the course of employment.

Horseplay defense requires proof that the injury originated in horseplay, which is a substantial deviation from employment.

Applicant's injury did not arise from horseplay but from an employment-related activity during a lunch break.

Applicant's testimony that he received no forklift safety training and was never told he could not ride on a forklift in that manner.

From the decision · page 3Applicant received no training regarding safe operation of forklifts and was never told he could not ride on a forklift in that way. (Supra, at pg. 3:10-12.) However, he also testified that he should not have done it. (Supra, at pg. 5:14.)

Employer's operations manager testified that riding on a forklift as described by applicant is not allowed and that forklift drivers are certified and expected to know safety regulations.

Applicant was injured while riding a forklift to retrieve lunch from his car parked in an employer-designated lot during an employer-approved lunch break.

From the decision · page 4In this case, the evidence establishes that the danger that gave rise to applicant's injury is a danger he was exposed to in his employment. By reason of his employment, applicant was entitled to an unpaid thirty-minute lunchbreak; he was injured while hitching a ride on a forklift to retrieve his lunch from his car, parked in an area designated by the employer. Applicant intended to return to the employer-provided break room to eat his lunch. These factual circumstances are sufficient to establish that the danger from which applicant's injury resulted is one he was exposed to by reason of his employment.