ADJ15342092 · June 24, 2024

Further review required to determine if injury was compensable and if applicant was engaged in activity reasonably contemplated by employment.

From the decision · page 1Defendant seeks reconsideration of the April 4, 2024 Findings of Fact issued by the workers' compensation administrative law judge (WCJ). Therein, the WCJ found that applicant sustained injury arising out of and occurring in the course of employment (AOE/COE) to his left upper extremity and left wrist, while employed as an equipment operator on August 9, 2021. The WCJ further found that the injury was not caused by serious and willful misconduct of the applicant. In addition, the WCJ stated, in the Opinion on Decision, that the taking of an unauthorized break did not remove applicant from the course of employment. Pursuant to our authority, we accept defendant's supplemental pleading. (Cal. Code Regs., tit. 8, § 10964.)

Applicant took an unauthorized break to go to his car and cool off, climbing a fence to reach his vehicle.

Favours Applicant prevailed

Whether this activity was reasonably contemplated by employment affects compensability.

From the decision · page 2Applicant became angry from the incident and decided to take his break, albeit unauthorized, to go to his car and cool off. There was no other worker at that post when the Applicant left to cool off, Summary of Evidence, p. 5, 7th paragraph. Since he did not have a badge and would have to walk a longer distance to leave the secured work area through the guard shack to get to his vehicle Summary of Evidence. p. 4, 3rd full paragraph. Applicant took a shorter route to get to his car by climbing the fence near where his vehicle was parked, Summary of Video of Incident of August 9, 2021, paragraphs 1-4. As he left his work area, he picked up his lunch pail to take with him for snacks, Summary of Evidence, p. 8, 4th paragraph. Applicant walked over to the security fence near where his car was parked on the other side of the fence. He climbed the fence to get to his car. Summary of Video of incident of August 9, 2021, p. 8, paragraph 2-3. After climbing to the top of the fence, Applicant fell to the ground in the parking area on the non-security side of the fence, becoming injured, Summary

WCJ found injury compensable and not caused by serious and willful misconduct.

Favours Applicant prevailed

Supports applicant's claim for benefits absent misconduct reduction.

From the decision · page 1Defendant seeks reconsideration of the April 4, 2024 Findings of Fact issued by the workers' compensation administrative law judge (WCJ). Therein, the WCJ found that applicant sustained injury arising out of and occurring in the course of employment (AOE/COE) to his left upper extremity and left wrist, while employed as an equipment operator on August 9, 2021. The WCJ further found that the injury was not caused by serious and willful misconduct of the applicant. In addition, the WCJ stated, in the Opinion on Decision, that the taking of an unauthorized break did not remove applicant from the course of employment. Pursuant to our authority, we accept defendant's supplemental pleading. (Cal. Code Regs., tit. 8, § 10964.)

Lab. Code, 3600(a)(2)

Injury must arise out of and in the course of employment (AOE/COE) under Labor Code section 3600(a)(2).

Applied to determine compensability of injury.

From the decision · page 3Notwithstanding the above, section 3600 imposes liability on an employer for workers' compensation benefits only if its employee sustains an injury arising out of and in the course of employment (AOE/COE). An employer is liable for workers' compensation benefits, where, at the time of the injury, an employee is "performing service growing out of and incidental to his or her employment and is acting within the course of employment." (Lab. Code, § 3600(a)(2).) The determination of whether an injury arises out of and in the course of employment requires a two-

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

Two-prong analysis for AOE/COE: injury must occur in the course of employment and arise out of employment.

Used to analyze the compensability of the injury.

From the decision · page 4prong analysis. (LaTourette v. Workers' Comp. Appeals Bd. (1998) 17 Cal.4th 644 [63 Cal.Comp.Cases 253].)

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

Acts of personal convenience are within the course of employment if reasonably contemplated by the employment.

Considered in determining if unauthorized break was within course of employment.

Gangwish v. Workers' Comp. Appeals Bd. (2001) 89 Cal.App.4th 1284

Rationale consistency required between WCJ's Report and Opinion on Decision as per Gangwish v. Workers' Comp. Appeals Bd. (2001).

Issue raised by defendant regarding differing rationale in WCJ's Report and Opinion on Decision.

From the decision · page 1Defendant contends that the WCJ erred in finding applicant's injury compensable arguing that applicant abandoned his employment and/or engaged in a material deviation at the time of his injury. Alternatively defendant argues that if applicant's injury is found compensable, that his benefits should be reduced due to his own serious and willful misconduct in violation of Labor Code1 section 4551. In its supplemental pleading and citing to Gangwish v. Workers' Comp. Appeals. Bd. (2001) 89 Cal.App.4th 1284, defendant contends that it is inconsistent with due process that the WCJ supported his decision with a different rationale in the Report than in the Opinion on Decision.