ADJ11808374 — California WCAB decision

What the panel ordered

The WCAB rescinded the WCJ's decision, found that the applicant's death arose out of and occurred in the course of employment, and returned the matter for further proceedings on dependency benefits.

Petitioners (dependents of the applicant) filed a timely petition for reconsideration of the WCJ's decision denying compensability of the applicant's death; the Appeals Board granted reconsideration and issues this Decision After Reconsideration.

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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.

Death benefitsApplicant prevaileddigestive system · body systems

The Appeals Board found a strong and reasonable inference that the shooting was connected to the applicant's employment, and that the special risk exception to the going and coming rule applied, making the death compensable.

From the decision · page 10Los Angeles, California by Custom Fresh Cuts, whose workers' compensation carrier at the time of injury was The Hartford, sustained injury arising out of and occurring in the course of employment to his digestive and body systems due to gunshots to his abdomen, resulting in his death. 2. The employer had knowledge of the injury to trigger the provision of the notice of potential eligibility to the decedent's dependents, which notice was not provided, thereby tolling the Statute of Limitations and making the claim timely. 3. The claim is not barred by the going and coming rule. 4. The issue of dependency benefits is deferred pending further proceedings and determination by the WCJ, jurisdiction reserved.

The rules the panel named

Authorities as the decision cited them, with how this panel applied each one.

Parks v. Workers' Comp. Appeals Bd. (1983) 33 Cal.3d 585; General Ins. Co. v. Workers' Comp. Appeals Bd. (Chairez) (1976) 16 Cal.3d 595

The special risk exception to the going and coming rule applies if (1) but for the employment the employee would not have been at the location where the injury occurred, and (2) the risk is distinctive in nature or quantitatively greater than risks common to the public.

Applied to find that the applicant's employment placed him at special risk of being confronted by Ortiz just outside the employer's parking lot, satisfying both prongs of the test.

From the decision · page 7According to the Court, there was a special risk to the teacher, not faced by the general public, because her car had been immobilized by departing school children, who had blocked traffic on the public street. In Parks, the Court applied a two-prong test it had developed in an earlier case, General Ins. Co. v. Workers' Comp. Appeals Bd. (Chairez) (1976) 16 Cal.3d 595 [41 Cal.Comp.Cases 162] ("Chairez"). Under the two-prong test of Chairez and Parks, the special risk exception to the going and coming rule applies (1) if "but for" the employment the employee would not have been at the location where the injury occurred; and (2) if "the risk is distinctive in nature or quantitatively greater than risks common to the public." (Parks, 33 Cal.3d at 590, quoting Chairez at 16 Cal.3d 595, pp. 600-601.) Further, the overarching principle of liberal construction under Labor Code section 3202 applies to determining whether there is a special risk exception to the going and coming rule, in which case reasonable doubts are resolved in the employee's favor. (Parks, 33 Cal.3d at 593.)

Lab. Code § 3202

Liberal construction under Labor Code section 3202 applies to determining whether there is a special risk exception to the going and coming rule, resolving reasonable doubts in the employee's favor.

Applied to resolve doubts in favor of finding compensability for the applicant's death.

From the decision · page 7According to the Court, there was a special risk to the teacher, not faced by the general public, because her car had been immobilized by departing school children, who had blocked traffic on the public street. In Parks, the Court applied a two-prong test it had developed in an earlier case, General Ins. Co. v. Workers' Comp. Appeals Bd. (Chairez) (1976) 16 Cal.3d 595 [41 Cal.Comp.Cases 162] ("Chairez"). Under the two-prong test of Chairez and Parks, the special risk exception to the going and coming rule applies (1) if "but for" the employment the employee would not have been at the location where the injury occurred; and (2) if "the risk is distinctive in nature or quantitatively greater than risks common to the public." (Parks, 33 Cal.3d at 590, quoting Chairez at 16 Cal.3d 595, pp. 600-601.) Further, the overarching principle of liberal construction under Labor Code section 3202 applies to determining whether there is a special risk exception to the going and coming rule, in which case reasonable doubts are resolved in the employee's favor. (Parks, 33 Cal.3d at 593.)

ADJ11808374 · September 14, 2023

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