What the panel ordered
The Board rescinded the prior Findings of Fact and Order, substituted new findings that applicant sustained injury AOE/COE, deferred all other issues, and returned the matter to the trial level for further proceedings.
Applicant sought reconsideration of the Findings of Fact and Order issued on September 1, 2020, which found no injury AOE/COE and ordered applicant to take nothing; the WCJ recommended denial of reconsideration, but the Board rescinded the F&O, found injury AOE/COE, deferred other issues, and returned the matter for further proceedings.
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.
The Board found that the applicant's travel to the Bay Area during his time off was a practice reasonably expected by the employer and that the supervisor knew of and did not object to the travel, thus the injury was sustained arising out of and in the course of employment.
From the decision · page 2Edil "David" the applicant was employed as a laborer for Bayview Environmental Services on July 29, 2018, at which time he was involved in a motor vehicle accident on Interstate 5 in Kern County, California. A passenger in the applicant' vehicle, Christian Agusto Avilagarcia, died at the scene. the applicant succumbed to his injuries at Kern Medical Center on August 15, 2018.
The facts that decided it
What the panel treated as outcome-determinative, and which side it favoured.
Applicant's travel to the Bay Area during his time off was a practice reasonably expected by the employer.
Favours Applicant prevailed
This fact established that the injury occurred during an activity incident to employment, supporting compensability under the commercial traveler rule.
Defendant's supervisor knew of and did not object to applicant's travel, merely cautioning it as tiring.
Favours Applicant prevailed
The supervisor's knowledge and lack of objection indicated the travel was not a distinct departure from employment, favoring compensability.
From the decision · page 5Thus, the record reveals that applicant's travel to the Bay Area during his time off was a practice which defendant expected of its employees; and, more specifically, that defendant's supervisor knew of applicant's travel on the weekend of his death. (Report, pp. 4, 7.) Notably, defendant's supervisor did not object to applicant's travel as a deviation from his employment, but merely cautioned him as a "friend" that the travel would be tiring. (Id., p. 7.) It follows that applicant sustained injury while engaged in an activity which defendant reasonably expected to be incident to its requirement that applicant spend time away from home on its Santa Monica project--and not while engaged in a distinct departure from his employment.
The rules the panel named
Authorities as the decision cited them, with how this panel applied each one.
IBM Corp. v. Workers' Comp. Appeals Bd. (Korpela) (1978) 77 Cal.App.3d 279, 283
Commercial traveler rule as interpreted in IBM Corp. v. Workers' Comp. Appeals Bd. (Korpela) (1978) 77 Cal.App.3d 279, 283
The Board applied the commercial traveler rule to determine that the applicant's travel was reasonably expected by the employer and thus compensable.
From the decision · page 4The test is whether the activity during the injury is one "that an employer may reasonably expect to be incident to its requirement that an employee spend time away from home." (IBM Corp. v. Workers' Comp. Appeals Bd. (Korpela) (1978) 77 Cal.App.3d 279, 283 [43 Cal.Comp.Cases 161].) This rule is construed liberally in favor of injured employees. (Korpela, supra, at p. 282 (citing Labor Code section 3202).)
Labor Code section 3202
Labor Code section 3202
The Board construed the commercial traveler rule liberally in favor of the injured employee under Labor Code section 3202.
From the decision · page 4The test is whether the activity during the injury is one "that an employer may reasonably expect to be incident to its requirement that an employee spend time away from home." (IBM Corp. v. Workers' Comp. Appeals Bd. (Korpela) (1978) 77 Cal.App.3d 279, 283 [43 Cal.Comp.Cases 161].) This rule is construed liberally in favor of injured employees. (Korpela, supra, at p. 282 (citing Labor Code section 3202).)
Hanford Cmty. Med. Ctr. v. Workers' Comp. Appeals Bd., 81 Cal.Comp.Cases 1039 (2016)
Hanford Cmty. Med. Ctr. v. Workers' Comp. Appeals Bd., 81 Cal.Comp.Cases 1039 (2016)
The Board relied on Hanford Cmty. Med. Ctr. to support compensability of travel during employment-related assignments.
What proof carried it
The evidence the panel weighed, by kind.
Defendant's supervisor testified that the applicant's travel to the Bay Area during the weekend was known and not objected to, favoring applicant's compensability claim.
From the decision · page 5Thus, the record reveals that applicant's travel to the Bay Area during his time off was a practice which defendant expected of its employees; and, more specifically, that defendant's supervisor knew of applicant's travel on the weekend of his death. (Report, pp. 4, 7.) Notably, defendant's supervisor did not object to applicant's travel as a deviation from his employment, but merely cautioned him as a "friend" that the travel would be tiring. (Id., p. 7.) It follows that applicant sustained injury while engaged in an activity which defendant reasonably expected to be incident to its requirement that applicant spend time away from home on its Santa Monica project--and not while engaged in a distinct departure from his employment.
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About this page
- A published decision of the California Workers' Compensation Appeals Board, taken apart by what it turned on. The Board publishes the decision itself; this page adds the extraction and quotes the passage behind every claim.
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