ADJ12410207 — California WCAB decision

ADJ12410207 · May 3, 2024

The Findings and Order of February 5, 2021 is affirmed except that findings 5 through 9 are rescinded and deleted, and findings 1 and 3 are amended to clarify that the injury arose out of and occurred in the course of employment.

Issues decided

Medical opinions weighed

Authorities named

District office

Fresno

What the panel ordered

Defendant filed a timely petition for reconsideration of the WCJ's decision, which was reviewed and resulted in this Decision After Reconsideration affirming in part and amending in part the WCJ's Findings and Order.

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What was disputed, and how it came out

Each issue the panel decided, with the reasoning it gave. An outcome is what this panel did on this record — not a rule, and not a prediction.

AOE/COEApplicant prevailedleft ankle · left arm

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

The facts that decided it

What the panel treated as outcome-determinative, and which side it favoured.

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.

ADJ12410207 · May 3, 2024

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