ADJ16148307 · August 9, 2024

Applicant credibly testified that he was shot while performing his regular job duties and was at the location due to his employment; defendant failed to present evidence to rebut this, and the injury was found compensable under the neutral risk and special risk-zone of danger doctrines.

From the decision · page 2Here, as set forth by the WCJ, applicant demonstrated that his claimed injury arose out of and in the course of employment. Applicant credibly testified that when he was shot, he was at the location due to his employment and was engaged in his regular job duties, and he credibly testified that he did not know why he was shot. Once applicant provided that evidence, the burden shifted to defendant.

Applicant was shot while performing his regular job duties at a community car wash.

Favours Applicant prevailed

This established that the injury occurred in the course of employment.

From the decision · page 2Here, as set forth by the WCJ, applicant demonstrated that his claimed injury arose out of and in the course of employment. Applicant credibly testified that when he was shot, he was at the location due to his employment and was engaged in his regular job duties, and he credibly testified that he did not know why he was shot. Once applicant provided that evidence, the burden shifted to defendant.

Applicant credibly testified he did not know the assailants or the motive for the shooting.

Favours Applicant prevailed

This supported the finding that the injury arose out of employment under the neutral risk doctrine.

From the decision · page 7Applicant presented testimony and evidence that the motive, if any, behind the actions of the third-party assailants who shot him on March 24, 2024 are unknown and that the shooters themselves were unknown to him. Applicant credibly and persuasively testified at trial that he "did not recognize the names of the people who shot him," "does not know if the assailants were in a gang," "never [saw] them before," "does not know why the attack happened," "does not know why he was shot," and "his shooting was not gang related." (Summary of Evidence, March 5, 2024 Trial, page 4, lines 24-25, page 5, lines 1-2 and 11- 12). During his recorded statement, Applicant referred to the shooting as a "random attack" (Joint Exhibit 2, page 1), and stated he "didn't see who did it" (Joint Exhibit 2, page 2). When interviewed by officers from the Los Angeles Police Department (LAPD) while in the hospital on the day of the shooting, Applicant stated "he did not see the suspects and did not know why he might have been targeted" (Joint Exhibit 3, page 93 and page 99).

Applicant's employment required him to enter high-risk gang areas, placing him at greater risk than the general public.

Favours Applicant prevailed

This supported application of the special risk-zone of danger doctrine making the injury compensable.

From the decision · page 8Applicant credibly and persuasively testified that he is a former gang member, that he began working for different non-profit organizations to provide services to the community and gang intervention after being released from prison. He testified that the work required him to enter "hot zones," which he described as high-risk communities with gang activity in places such as Koreatown in downtown Los Angeles (Summary of Evidence, March 5, 2024 Trial, page 3, lines 14-25). He testified that at the time of his injury he was a Community Health Worker passing out COVID kits in highly active gang areas and that "the

Lab. Code, §3600

Injury must arise out of and occur in the course of employment (AOE/COE).

The Board applied Labor Code section 3600 to determine compensability without regard to negligence.

From the decision · page 1In order to be compensable, an injury must arise out of and occur in the course of employment (AOE/COE). (Lab. Code, § 3600.) The employee bears the burden of proving injury AOE/COE by a preponderance of the evidence. (South Coast Framing v. Workers' Comp. Appeals Bd. (Clark) (2015) 61 Cal.4th 291, 297-298, 302 [80 Cal.Comp.Cases 489]; Lab. Code, § 3600(a); 3202.5.) To determine whether an injury is AOE/COE, we look to the nature of the act and the nature of the employment, the custom or usage of the employment, the terms of the employment contract, and "other factors." (Price v. Workers' Comp. Appeals Bd. (1984) 37 Cal.3d 559, 568 [49 Cal.Comp.Cases 772] (Price); North American Rockwell Corp. v. Workmen's Comp. App. Bd. (1970) 9 Cal.App.3d 154, 158 (Saska) [35 Cal.Comp.Cases 300].) Labor Code section 3600(a) states that liability will exist "without regard to negligence."

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

The injury must occur in the course of employment, referring to time, place, and circumstances.

The Board applied the two-prong test from LaTourette to analyze the injury's relation to employment.

From the decision · page 2Beverly Fabrics (2002) 95 Cal.App.4th 346 [67 Cal.Comp.Cases 51].) The determination of 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 [63 Cal.Comp.Cases 253] (LaTourette).)

Lab. Code, §3600

Liability exists for injuries sustained by employees arising out of employment without regard to negligence.

The Board emphasized that liability under Labor Code section 3600 is strict and does not depend on employer negligence.

From the decision · page 6Labor Code § 3600 reads, in part, that "[l]iability for the compensation provided by this division... shall, without regard to negligence, exist against an employer for any injury sustained by his or her employees arising out of... employment..." (Lab. Code, § 3600 (Deering, Lexis Advance through the 2024 Regular Session Ch 9).)

Applicant's credible testimony that he did not know the assailants or the motive for the shooting.

From the decision · page 7Applicant presented testimony and evidence that the motive, if any, behind the actions of the third-party assailants who shot him on March 24, 2024 are unknown and that the shooters themselves were unknown to him. Applicant credibly and persuasively testified at trial that he "did not recognize the names of the people who shot him," "does not know if the assailants were in a gang," "never [saw] them before," "does not know why the attack happened," "does not know why he was shot," and "his shooting was not gang related." (Summary of Evidence, March 5, 2024 Trial, page 4, lines 24-25, page 5, lines 1-2 and 11- 12). During his recorded statement, Applicant referred to the shooting as a "random attack" (Joint Exhibit 2, page 1), and stated he "didn't see who did it" (Joint Exhibit 2, page 2). When interviewed by officers from the Los Angeles Police Department (LAPD) while in the hospital on the day of the shooting, Applicant stated "he did not see the suspects and did not know why he might have been targeted" (Joint Exhibit 3, page 93 and page 99).

Lack of evidence from defendant to rebut applicant's testimony or show an industrial or personal motive for the shooting.

From the decision · page 7Applicant sustained his burden by demonstrating that he did not know the men that shot him, he did not know of any motive for the shooting, and the lack of motive in the LAPD records. Applicant is not required to prove that the employment affirmatively played a role in the assault, he only needed to prove that his employment took him to the place of harm. Defendant failed to present any rebuttal testimony or evidence of an industrial or personal motive for the shooting. In cases like this, where the risk of injury is not related to the employment or the employee, or the nature is unknown, the injury to the Applicant is found to have arisen out of employment and compensable.

Applicant's testimony that his employment required him to enter high-risk gang areas, placing him at greater risk than the general public.

From the decision · page 8Applicant credibly and persuasively testified that he is a former gang member, that he began working for different non-profit organizations to provide services to the community and gang intervention after being released from prison. He testified that the work required him to enter "hot zones," which he described as high-risk communities with gang activity in places such as Koreatown in downtown Los Angeles (Summary of Evidence, March 5, 2024 Trial, page 3, lines 14-25). He testified that at the time of his injury he was a Community Health Worker passing out COVID kits in highly active gang areas and that "the