ADJ15117833 · May 26, 2023

Applicant was injured on employer's premises while performing activities reasonably incidental to his employment, including picking up tools, which was not a substantial deviation from his duties, and even if he violated employer's rules, the injury still arose out of and in the course of employment.

From the decision · page 1Applicant seeks reconsideration of the Findings of Fact and Order (F&O) issued by a workers' compensation administrative law judge (WCJ) March 9, 2023, wherein the WCJ found that applicant failed to sustain his burden of proving industrial injury arising out of and in the course of his employment (AOE/COE) and ordered that applicant "take nothing further on this claim." Applicant contends that his injury was AOE/COE.

Applicant was injured on employer's premises while picking up tools after his shift

Favours Applicant prevailed

This activity was reasonably contemplated by employment and not a substantial deviation from duties, supporting compensability

Applicant used personal tools at work despite employer's rule against it

Favours Applicant prevailed

Violation of employer's rules does not remove injury from course of employment if injury occurs during performance of duties

Labor Code section 3600(a)

Labor Code section 3600(a) liability for injuries arising out of and in the course of employment

Employer liable without regard to negligence; employee bears burden of proof for AOE/COE

From the decision · page 3DISCUSSION Labor Code section 3600(a)1 provides for liability for injuries sustained "arising out of and in the course of the employment." An employer is liable for workers' compensation benefits "without regard to negligence." (Lab. Code, § 3600(a).) An employee bears the burden of proving injury AOE/COE by a preponderance of the evidence. (South Coast Framing, Inc. v. Workers' Comp. Appeals Bd. (Clark) (2015) 61 Cal.4th 291, 297-298, 302 [80 Cal.Comp.Cases 489]; Lab. Code, § 3600(a), 3202.5.) Whether an employee's injury arose out of and in the course of

Latourette v. Workers' Comp. Appeals Bd. (1998) 17 Cal.4th 644

Definition of 'in the course of employment' and 'arising out of employment' requiring causal link and reasonable contemplation by employment

Injury must occur by reason of condition or incident of employment; acts reasonably contemplated by employment are compensable

From the decision · page 4The phrase "in the course of employment" "`ordinarily refers to the time, place, and circumstances under which the injury occurs.'" (Latourette v. Workers' Comp. Appeals Bd. (1998) 17 Cal.4th 644, 651 [63 Cal.Comp.Cases 253], citing Maher v. Workers' Comp. Appeals Bd. (1983) 33 Cal. 3d 729, 733.) An "employee is in the `course of his employment' when he does those reasonable things which his contract with his employment expressly or impliedly permits him to do." (Latourette, supra, at p. 651.) For the injury to arise out of employment, it must "'occur by reason of a condition or incident of [the] employment.' [citation] That is, the employment and the injury must be linked in some causal fashion. [citation]" (Id. at p.

Price v. Workers' Comp. Appeals Bd. (1984) 37 Cal.3d 559

Acts of personal convenience reasonably contemplated by employment are within course of employment

Acts necessary to life, comfort, and convenience at work are incidental to service and compensable

From the decision · page 4"Acts of `personal convenience' are within the course of employment if they are `reasonably contemplated by the employment.'" (Price v. Workers' Comp. Appeals Bd. (1984) 37 Cal.3d 559, 568 [49 Cal.Comp.Cases 773], citing Pacific Indem. Co. v. Ind. Acc. Com. (1945) 26 Cal.2d 509, 514 [10 Cal.Comp.Cases 131]; see also Fremont Indemnity Co. v. Workers' Comp. Appeals Bd. (1977) 69 Cal.App.3d 170, 176 [42 Cal.Comp.Cases 297]; Vogt v. Herron Construction, Inc. (2011) 200 Cal.App.4th 643, 650-654.) "[A]cts necessary to the life, comfort and convenience of the [employee] while at work, though strictly personal to himself, and not acts of service, are incidental to the service, and injury sustained in the performance thereof is deemed to have arisen out of the employment. [citations]." (Price, supra, at pp. 567-568.) Thus, even if

Rankin v. Workers' Comp. Appeals Bd. (1971) 17 Cal.App.3d 857

Deviation from duties must be substantial to take employee out of employment scope

Slight deviations do not release employer from liability; misconduct bars recovery only if it is a substantial deviation

From the decision · page 5We now turn to the issue of whether applicant's picking up tools was a material deviation from applicant's duties. While a substantial or material deviation may take an employee out of the employment relationship, a slight deviation will not take the employee out of employment. (Rankin v. Workers' Comp. Appeals Bd. (1971) 17 Cal.App.3d 857, 860 [36 Cal.Comp.Cases 286]; State Compensation Ins. Fund v. Workers' Comp. Appeals Bd. (1967) 67 Cal.2d 925, 928 [32 Cal.Comp.Cases 525]; Western Pipe & Steel Co. v. Industrial Acci. Com. (Henderson) (1942) 49 Cal.App.2d 108 [7 Cal.Comp.Cases 28].) "Mere deviation by an employee from a strict course of duty does not release the [employer] from liability. In order to have such an effect the deviation must be shown substantially to amount to an entire departure." (De Mirjian v. Ideal Heating Corp., supra, 129 Cal.App.2d at p. 766, citing Dolinar v. Pedone (1944) 63 Cal.App.2d 169, 175.) In the absence of an applicable statutory defense, misconduct that is negligent, willful, or even criminal "will bar recovery only when it constitutes a deviation from the scope of employment." (Westbrooks v. Workers' Comp. Appeals Bd. (1988) 203 Cal.App.3d 249, 253 [53 Cal.Comp.Cases 157] (Westbrooks).) Here, applicant picking up his tools was not a deviation, much less a substantial or material deviation.

Westbrooks v. Workers' Comp. Appeals Bd. (1988) 203 Cal.App.3d 249

Violation of employer's rules does not remove injury from course of employment if injury occurs during performance of duties

Injury sustained in violation of employer's instructions still compensable if within scope of employment

From the decision · page 5Finally, the injury is still compensable even if there was a rule against an employee using their own tools or if applicant was told not to use his own tools. Holding a violation of an employer's instructions or rules as not within the course of employment could "undermine the no- fault foundation of workers' compensation law." (Westbrooks, supra, 203 Cal.App.3d at p. 254.) In other words, "[w]here an employee is in the performance of the duties of his employer, the fact that the injury was sustained while performing the duty in an unauthorized manner or in violation of instructions or rules of his employer does not make the injury one incurred outside the scope of employment." (Williams v. Workers' Comp. Appeals Bd. (1974) 41 Cal.App.3d 937, 940 [39 Cal.Comp.Cases 619].) For example, a bus station security guard's injury was found to be AOE/COE when he was injured while chasing a person disturbing other passengers despite the employment handbook's rule against chasing anyone. (Zenith Insurance Company v. W.C.A.B.

Applicant's testimony about his job duties, injury circumstances, and use of personal tools at work

Supervisor Montenegro's testimony that applicant used personal tools despite warnings and that the tool cart was not yet delivered on injury date

From the decision · page 3Maintenance supervisor Montenegro testified that he is applicant's direct supervisor and that applicant is knowledgeable and a tremendous help. (8/29/22 MOH/SOE, pp. 6-7.) Applicant followed directions "to a point" but also liked to put his own signature on projects. (8/29/22 MOH/SOE, pp. 6-7.) He had seen applicant use his own tools at work several times, including in September and October 2020, and warned him not to use personal tools at work. (8/29/22 MOH/SOE, p. 7.) He never asked applicant to bring his own tools to work. (8/29/22 MOH/SOE, p. 8.) He further testified that applicant could not have been assembling the tool cart on August 16, because the cart was not picked up from Home Depot until August 23, 2021. (3/1/23 MOH/SOE, p. 2.)