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April/May
2005
 Personally
Motivated Return to Work During Off-Duty Hours Not Within Scope of Employment
for Workers' Comp
When an employee
returns to his employer’s premises during off-duty hours for personally
motivated reasons and is injured there, the injury is not compensable.
This was the conclusion of the California Workers’ Compensation
Appeals Board in a recent decision in which it upheld the decision of
a workers’ compensation judge (WCJ). Juan Manuel Patricio-Cruz
v. Workers’ Compensation Appeal Board, Lee Brothers Industrial
Catering, writ of rev. denied, (Cal. Ct. App. 12/14/04).
Juan Manuel Patricio-Cruz
worked full-time as a warehouse laborer for Lee Brothers Industrial
Catering. Lee Brothers sold catering supplies to independent catering
truck owners and allowed various truck owners to use its parking lot
when they were not using their trucks. The Lee Brothers facility was
open Monday through Friday and on Sunday. It was closed on Saturday.
Lee Brothers specifically
instructed Patricio-Cruz not to wash independently owned trucks parked
in the Lee Brothers parking lot. Despite this instruction, Patricio-Cruz
was hired by owners of catering trucks to wash their trucks on Saturdays
on Lee Brothers’ premises. He was paid cash for each truck he
washed, and he used his own brushes and soap for the job. One Saturday,
Patricio-Cruz was injured while washing an independently owned truck
on the premises. He then filed a workers’ compensation claim against
Lee Brothers.
Following a hearing,
the WCJ found that the injury was not industrial, because it happened
during off-duty hours and did not result from the performance of his
regular job duties. The WCJ noted that it is well settled that “a
personally motivated return to the employer’s premises during
off duty hours and while not under the direction or control of the employer”
is not considered within the course of employment. Specifically, the
WCJ found that there was no employment connection in this case because
Lee Brothers did not benefit from Patricio-Cruz’s activities.
Rather, the WCJ noted, he was earning money solely for himself and was
not under either the express or implied control of Lee Brothers. Not
only did he not have the employer’s permission to perform these
activities, Lee Brothers had expressly forbidden these activities.
The WCJ cited Codina
v. WCAB, in which an employee had been instructed by his employer
not to work on the premises during off-duty hours. The employee was
injured when he disobeyed the instructions and returned to work during
off hours to perform job functions. That injury was held to be noncompensable.
The WCJ concluded that the facts in Patricio-Cruz presented
an even stronger case for noncompensability because Patricio-Cruz was
not even performing his regular job duties at the time of the injury,
but rather was engaging in personally motivated activities.
Reprinted
from Council’s California Workers’
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