ADJ11808374 · September 14, 2023

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.

Ortiz, the shooter, was a former co-worker and independent contractor for the employer, and had a work-related relationship with the applicant, including financial dealings and ongoing contact at the workplace.

Favours Applicant prevailed

Supported the inference that the shooting was connected to the applicant's employment, not purely personal.

the applicant was shot immediately after leaving work, in a location adjacent to the employer's parking lot, where Ortiz waited for him.

Favours Applicant prevailed

Showed that the risk of confrontation was distinctive to the applicant's employment and not common to the general public, satisfying the special risk exception.

From the decision · page 9As pointed out by the WCJ, Ortiz backed his van into a parking stall on the public alley adjacent to the gate that separated the alley from the employer's parking lot, so that the driver's side was towards the employer's parking lot. Because the applicant backed out of the employer's lot, his driver's side faced Ortiz's driver's side. (Exhibit 11.) Although the applicant backed out and briefly got closer to Ortiz's driver's-side door before getting shot a few steps farther away, Ortiz's placement in the alley and his advance towards the applicant's driver's-side door can fairly be described as an ambush. It is clear that by reason of the applicant's job with Fresh Cuts, Ortiz knew that if he had a score to settle with the applicant, he could find and confront him in that alley, right after the work day ended. This risk to the applicant was surely distinctive in nature or quantitively greater than the risk to the general public who might use that alley during the day. This satisfies the second prong of Parks. We conclude that the applicant's shooting death by Ortiz occurred in the course of employment.

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.)

Surveillance video and still photos showed the shooter (Ortiz) waiting in a van adjacent to the employer's parking lot, and the applicant was shot just after leaving work, supporting the inference of a work connection and special risk.

From the decision · page 2The decedent [the applicant], a warehouse supervisor for Custom Fresh Cuts worked generally from 8:00 a.m. to 4:00 p.m. or 5:00 p.m. (MOH 12/15/20 pg. 12:3.5-5) He was shot on February 9, 2017. On the day of the shooting, there were approximately twenty vehicles parked along Bay Street. (App. Ex. 14, 1st Still Photo, Def. Ex. B Map) Surveillance video and still photos from the video show that the shooter, [Ortiz] backed his van into a parking stall on Bay Street adjacent to the purple gate that separated Bay Street from the employer's parking lot so that the driver's side was towards the employer's parking lot. (MOH 12/15/20, Pg. 7:9-18, App. Ex. 11 1st Still photo time of 17:31.41) [the applicant's] white vehicle [backed out of] the employer's parking lot and backed completely into Bay Street. He stopped his vehicle with his driver's side door facing towards the

Testimony and evidence established that Ortiz and the applicant's relationship and interactions were primarily work-related, and that Ortiz knew where to find the applicant after work due to his employment, supporting the special risk exception.