ADJ19139846 · June 3, 2024

Applicant was on paid on-call status at the time of injury, which was found to be within the course of employment. The injury occurred while weightlifting during on-call time, which was a reasonable activity under the circumstances. The personal convenience doctrine and relevant case law supported compensability.

From the decision · page 1Applicant seeks reconsideration of an arbitrator's Findings and Order of March 15, 2024, wherein it was found that "The left shoulder injury [applicant] sustained on October 2, 2022 did not arise out of an occur in the course of employment." The arbitrator thus issued an order that applicant take nothing by way of his claim. In the Opinion on Decision, the arbitrator explained that she found that applicant was not in the course of employment at the time of injury pursuant to Labor Code Section 3660(a)(9) which states the employer is not liable for any injuries which occur during voluntary participation in an off-duty recreational, social, or athletic activity not constituting a part of the employee's work related duties, unless it was a reasonable expectancy of, or was expressly or impliedly required by the employment.

Applicant was on paid on-call status at the time of injury, which was found to be within the course of employment.

Favours Applicant prevailed

This status meant the injury was compensable as it was not off-duty recreational activity.

From the decision · page 1We agree that the unrebutted evidence shows that applicant was on a special, paid on-call status and the time of injury and was thus on duty, and therefore in the course of employment. Because his act of weight training while being on-call was not an unreasonable deviation from the

Applicant's injury occurred while weightlifting during on-call time, which was a reasonable activity under the circumstances.

Favours Applicant prevailed

The activity was within reasonable contemplation of employment and did not sever causal connection.

From the decision · page 6(Price, 37 Cal.3d at pp. 567-568.) Here, applicant's going to the gym during his multi-hour standby time was within

Applicant sustained injury as a result of the weightlifting incident.

From the decision · page 6Agreed medical evaluator orthopedist Philip H. Conwisar, M.D. opined that applicant sustained injury as a result of the weightlifting incident. (June 14, 2023 report at p. 9.) We therefore grant reconsideration, rescind the arbitrator's decision, and issue a new decision finding industrial injury and deferring all other issues.

California Labor Code

Labor Code section 3600(a)(9)

Employer not liable for injuries during voluntary off-duty recreational activities unless reasonably expected or required by employment; not applicable here as applicant was on paid on-call status.

From the decision · page 1Applicant seeks reconsideration of an arbitrator's Findings and Order of March 15, 2024, wherein it was found that "The left shoulder injury [applicant] sustained on October 2, 2022 did not arise out of an occur in the course of employment." The arbitrator thus issued an order that applicant take nothing by way of his claim. In the Opinion on Decision, the arbitrator explained that she found that applicant was not in the course of employment at the time of injury pursuant to Labor Code Section 3660(a)(9) which states the employer is not liable for any injuries which occur during voluntary participation in an off-duty recreational, social, or athletic activity not constituting a part of the employee's work related duties, unless it was a reasonable expectancy of, or was expressly or impliedly required by the employment.

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

Personal convenience doctrine

Acts necessary to the life, comfort, and convenience of the employee while at work are incidental to service and compensable if reasonably contemplated by employment.

From the decision · page 5The personal convenience doctrine was discussed by the Supreme Court in Price v. Workers' Comp. Appeals Bd. (1984) 37 Cal.3d 559 [49 Cal.Comp.Cases 772]. In Price, the applicant arrived at his place of work 15 minutes early, as was his habit. Often the work premises were open before his official start time of 8 a.m. On the date of his injury, his workplace was closed. Instead of waiting in front of the door of the business, the applicant went back to his car, which was parked on the street. The applicant put a quart of oil into his car while he waited. While he placed oil into his car, a passing car struck Price's leg.

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

Two-prong test for arising out of and in the course of employment

Determines whether injury occurred in time and place of employment and has causal connection to employment.

From the decision · page 4Labor Code section 3600 imposes liability on an employer for workers' compensation benefits only if an employee sustains an injury "arising out of and in the course of employment." Whether an injury arises out of and in the course of employment requires a two-prong analysis. (LaTourette v. Workers' Comp. Appeals Bd. (1998) 17 Cal.4th 644, 650-651 [63 Cal.Comp.Cases 253].) In State Compensation Ins. Fund v. Workers' Comp. Appeals Bd. (Vasquez de Vargas) (1982) 133 Cal.App.3d 643, 652 [47 Cal.Comp.Cases 729], the Court of Appeal explained, "Generally, `in the course of employment' refers to the time and place of the injury. [Citation.] The phrase `arise out of employment' refers to a causal connection between the employment and the injury. [Citation.]"

Applicant's supervisor testified that employees were expected to work out at private gyms near their homes while on standby duty.

From the decision · page 6reasonable contemplation and thus not so wholly unexpected to sever the causal connection between employment and injury. Applicant's supervisor testified that he knew and expected his employees to work out at private gyms near the employees' homes while on standby duty. (Arbitration Transcript at pp. 33-35.) As noted above, Labor Code section 3600(a)(9) which imposes a more stringent analysis and would have required applicant to exercise in a department- approved facility, is not relevant to the facts of this case.

Applicant's unequivocal testimony and supervisor's testimony that applicant was on paid on-call status at the time of injury.

From the decision · page 4At the time of injury, applicant was in the course of employment. He was compensated for his on-call status. During his on-call status, he was told to be in reasonable geographical proximity to Southern California, to abstain from alcohol or other intoxicants, but was allowed to participate in any reasonable activity so long as he was near his department-provided vehicle. Since applicant was following these parameters at the time of injury, he was in the course of employment. The arbitrator did not consider application of the Gonzalez case because it was "not established the Applicant was in fact on-call at the time of his injury." (Report at p. 6.) However, applicant unequivocally testified that he was on on-call status. (Arbitration Transcript at pp. 60-61, 71, 82.) Applicant's supervisor did not recall with certainty at the arbitration hearing one and a half years after the injury whether applicant was on-call or not. (Arbitration Transcript at p. 37, 40.)