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Grinberg: WCAB Says Unauthorized Manner Is Still Compensable

  • State: California
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Regular readers will know that it is truly a rare thing when I agree with a result that disfavors the defense but, well, here we are.

Gregory Grinberg

Gregory Grinberg

Before I had my life view permanently warped by the inner workings of the workers’ compensation system, as a perfectly normal, healthy, happy person I often wondered why employers would punish employees who sprang into action to prevent crime. Why would you fire the hero who tackled the armed robber looting your restaurant? Why would you suspend the sales clerk who tackled a fleeing shoplifter?

Well, workers’ compensation provides an excellent explanation of exactly why employers are incentivized to do that: It is far cheaper to replace stolen articles by raising prices on customers than it is to pay for the workers’ compensation benefits flowing from injuries sustained during heroics. The punishments serve as a deterrent for future situations with other employees.

One of the very early blog posts here was on this very topic. Well, a recent panel decision, Alex v. All Nation Security Services Inc., provided the Workers' Compensation Appeals Board with an opportunity to reiterate and explain the policy that awards benefits to superheroes moonlighting as ordinary employees.

In Alex, a security guard confronted and chased a disruptive person hurling profanity and harassment at customers and employees alike. In the process, Alex was struck by the employee and sustained further injury after he left the employer’s premises in pursuit of said troublemaker. The employer argued that the claim was not compensable, as Alex had received clear instruction and training that he was not to chase after or apprehend anyone; the stated job duties were far closer to “observe and report” than “serve and protect.”

By giving chase, defendant argued, the conduct exceeded the scope of employment, and by leaving the employer’s facility, the facts only strengthened the argument. 

Well, neither the trial judge nor the WCAB agreed. The situation arose when applicant was at his employer’s premises doing his job as a security guard. What followed was authorized activity, if performed only in an unauthorized manner. The trial judge’s ruling that the injury was compensable was upheld by the WCAB.

Now, to the naysayers reading this blog, allow me to offer you a hypothetical. If I hire a security guard to work the night shift at my 24-hour-person-crusher-factory and I give specific and clear instructions on a weekly basis to my security guard NOT to get crushed by the person-crushers, am I safe from workers’ comp liability when the guard inevitable suffers the inevitable? 

Never mind why I have such a factory, but the point is still there: Instructing the injured worker not to do things that will result in the injured worker getting hurt is insufficient. In some cases, there may be affirmative defenses or perhaps reduced benefits due to employee serious and willful misconduct, but this is, after all, a no-fault system.

The Alex case lays out the authority and citations for this fairly well, chief among them the 1988 Court of Appeal case Westbrooks v. WCAB (employee misconduct, whether negligent, willful or even criminal, does not necessarily preclude recovery … in the absence of an applicable statutory defense, such misconduct will bar recovery only when it constitutes a deviation from the scope of employment”). It should drive the point home that employers seeking to mitigate their workers’ compensation exposure will benefit most from increased training, improving conditions and pricing the inevitable workers’ compensation claim into the cost of services. 

The theory that the fault of an employee will bar the claim is much like the car my parents owned in the Soviet Union (a non-starter).

Gregory Grinberg is managing partner of Gale, Sutow & Associates’ S.F. Bay South office and a certified specialist in workers’ compensation law. This post is reprinted with permission from Grinberg’s WCDefenseCA blog.

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