State Comp. Ins. Fund v. Workers’ Comp. Appeals Bd. (Guzman) (Court of Appeal, Published) (83 CCC 185):
The Court of Appeal held that the applicant, Jose A. Guzman, failed to meet his burden of proving that his psychiatric injury was caused by a “sudden and extraordinary employment condition” under Labor Code §3208.3(d).
Guzman, a construction laborer, sustained industrial injury while operating a compactor used to pack down soil. The compactor hit a rock while Guzman was working on a hillside with a 45-degree slope; the compactor rose in the air, caused Guzman to fall backwards, and then fell on top of him.
According to the Court, Guzman failed to prove this “employment condition” was “sudden and extraordinary.”
The Court annulled the Board’s decision, which had affirmed that compensation for Guzman’s psyche injury was not barred by §3208.3(d).
Contra Costa Water District v. WCAB (Kirby) (W/D) (83 CCC 366)
Workers compensation claim alleging a psychiatric injury on a continuous trauma basis.
Defendant denied applicant’s claim, asserting that applicant did not meet his burden of proof that actual events of employment caused a psychiatric disability, as opposed to perceive events, which were the predominant cause of his psychiatric injury and even if applicant met his predominant cause threshold the psychiatric injury was barred by the good-faith personnel action of Labor Code §3208.3 (h).
The applicant was evaluated by a Qualified Medical Evaluator in psychiatry. The physician, regarding causation, stated that applicant’s psychiatric condition was 50% caused by harassment by defendant’s operation and maintenance supervisor, 10% by harassment by defendant superintendent of distribution, 10% harassment by two of applicant’s subordinates, 5% to a negative performance appraisal.
The matter proceeded to trial and the WCJ ruled that applicant had met his burden of proof of predominant cause threshold of Labor Code 3208.3 (b) (1).
The WCJ indicated the applicant’s right to compensation could be precluded if defendant established that a substantial cause of applicant’s injury was due to lawful discriminatory, good-faith personnel actions pursuant to Labor Code §3208.3 (h).
The WCJ describe various actions that may or may not constitute a personnel actions and explained that whether an action constitutes a personnel action largely depends on the circumstances in which the action occurs.
The WCJ stated there is no controlling law regarding what constitutes a personnel action in the context of Labor Code §3208.3 (h). The WCJ, citing the case of Larch v. WCAB (63 CCC 831), a significant panel decision, the Board held a personnel action depends on the subject matter and factual setting for each case. The term includes, but is not limited to, a termination, disciplinary action short of termination may constitute personnel actions even if they are harsh, however the term does not encompass all actions by any level of personnel in the employment situation or all happenings in the workplace done in good faith.
A personnel action is conduct either by or attributable to management, including such things is done by one who has the authority to review, criticize, demote, or discipline an employee. It is not necessary for the personnel action to have a direct or immediate effect on the employment status. Personnel actions may include, but are not necessarily limited to transfers, demotions, layoffs, performance evaluations and disciplinary action such as warnings, suspensions and termination of employment.
The WCJ turning to the facts of this case indicated that defendant failed to meet its burden of proof that at least 35% of the causation of applicant’s injury was a personnel action.
Defendant filed a Petition for Reconsideration.
The WCJ recommended reconsideration be denied.
The WCJ noted that based on the report of the Qualified Medical Evaluator the physician apportioned 25% of the applicant psychiatric injury applicant’s own maladaptive traits and misperception.
The WCJ further found that 75% was caused by actual events of employment.
The WCJ then concluded that defendant did not meet its burden of proof that applicant’s psychiatric injury was substantially caused by a good-faith personnel action.
As a matter of law the defendant has to prove that good-faith personnel actions constitute at least 35% of the causation of injury.
The Qualified Medical Evaluator found 50% of the causation was the reaction with one person. The WCJ found that this 50% included both personnel actions and non-personnel actions. The term personnel action does not encompass all actions by any level of personnel in the employment situation or all happenings in the workplace done in good faith. The WCJ stated defendant did not have the Qualified Medical Evaluator parcel out the causation of personnel action versus non-personnel action and therefore defendant is not met their burden of proof.
The evidence established that the applicant was given a job supervising to churlish, meaning insubordinate individuals who sought to subvert him at every turn. These events were not a personnel action. The applicant was acknowledged to be a hard worker and a leader. Part of the stress was a dispute about the applicant taking sides which may have been friendship was not a good-faith personnel action.
The petition for reconsideration and writ of review were denied.
Delgado v. County of Santa Barbara (Court of Appeal/Noncertified) (83 CCC 25):
Matthew Delgado, a deputy of the Santa Barbara Sheriff’s Department, caused an automobile accident, injuring Darren Flath.
At the time of the accident Delgado was not on duty as a deputy sheriff, but was driving the vehicle by Senate Barbara County. Delgado was attending a training conference in another county and was driving from a personal event back to the residence at which he was staying the accident occurred.
The facts showed that Delgado was an employee of the County as a deputy sheriff, caused an automobile accident while attending a training conference in another county, that at the time of the accident Delgado was not on duty as a deputy sheriff but was driving a vehicle owned by the county, that the accident occurred while he was driving for a personal event (wedding rehearsal barbecue), was driving back to the residence where he was staying while attending the training conference, that Delgado’s participation in the training conference the use of his car to attend the trading conference were approved by County.
The trial court granted summary judgment in favor of the County and against Flath and Delgado on the grounds that Delgado was not acting within the scope of his employment at the time the accident occurred, and the doctrine of respondeat superior did not apply.
The Court of Appeal granted the writ of review and found that the special errand exception to the going and coming rule applied and the deviation was not material.
The Court of Appeal indicated that under the going and coming, an employee not regarded as acting within scope of his employment while going to or coming from the workplace.
An exception to the rule occurs if the employee is on a special errand. If the employee is not simply on his way from his home to his place of work or returning from said place to his home for his purposes, but is coming from his home or his returning to it on a special errand either as part of his regular duties or at a specific order or request the employer, the employee is considered to be in the scope of his employment from the time that he starts on the errand until he is returned or until he deviates therefrom for personal reasons.
The special errand exception applies during the entirety of the errand unless the employee deviates from the errand in such a material manner as to constitute a departure from the course of employment.
To constitute an abandonment, however, the deviation or departure from the employer’s business to pursue a personal errand must be substantial and complete. A mere deviation for personal reasons will be insufficient.
Where the employee may be deemed to be pursuing a business errand and a personal objective simultaneously, he will still be acting within the scope of his employment.
In determining whether an employee has departed from the course and scope of employment, a variety of factors must be considered in weight, including the intent of the employees; the nature, time and place of the employees conduct; the work the employee was hired to do; the incidental acts the employer should reasonably expect the employee to do; the amount of freedom allowed to the employee in performing his or her duties; and the amount of time consumed in the personal activity.
All of the relevant circumstances must be considered and weighed in relation to one another.
In this case Delgado was on a special errand for the County while attending the training class. To determine whether Delgado’s driving to a private party in that county-owned vehicle was a departure from his special errand and, if so, whether it was a complete abandonment as a matter of law the court look to the facts of the case and the factors in court.
In this case Delgado was looking for a way to get a meal without spending too much money or imposing on his host. Delgado was authorized to use the county owned vehicle to obtain meals during the week, in addition to driving to and from the training class, and driving home after the conclusion of the class.
It was reasonable for Delgado to use the County owned vehicle to travel to the event as he did not have a private vehicle while attending the training class. Delgado was using the County owned vehicle because he was personally paying for and arranging for his tuition, and lodging.
Significantly, Delgado went back to the house in which she was staying and remained there for at least two hours before departing for the event. The gathering was farther from the residence then was the training class, but only by two or 3 miles. Eating dinner clearly is reasonably necessary for the employee’s comfort and convenience during an out-of-town training session, and the only means for Delgado to purchase dinner was to use the County owned vehicle.
The County reasonably expected Delgado to obtain food during the week-long training session. Of particular significance in the court’s analysis is the discipline imposed on Delgado by the county due to what it described as Delgado’s “non-duty conduct” that was “in the course of employment.” While Delgado’s supervisor later attempted to downplay the legal significance of this language, Delgado’s discipline was never revoked, and the written notice of suspension was not corrected.
Delgado supervisor believed it was reasonable for Delgado to drive in the vehicle to the training event. Delgado’s direct supervisor testified the trip was reasonable, and that Delgado did not need the supervisor’s permission to go to the event. A lieutenant from the county and resources department stated in an e- mail after the accident that he had previously approved other employees attending personal events like the event Delgado attended, if it is within reason.
Delgado left for the gathering at 8 PM and arrived before 9 PM. He then left the gathering at about 11 PM. Gathering had no connection to Delgado’s employment or training. Delgado was paid for the period from 7:30 AM to 5:30 PM that day. The accident occurred well outside the time for the training class in the time allotted for computing to and from the training class.
The court concluded the evidence, when considered as a whole, did not show a clear abandonment by Delgado’s special errand so that the trial court could determine as a matter of law that he was outside the scope of his employment at the time of the accident.
The judgment was reversed and appellate was to recover the costs of appeal.