Opinion
NOT TO BE PUBLISHED
ORIGINAL PROCEEDINGS; petition for writ of review from a decision of the Workers’ Compensation Appeals Board. James C. Cuneo, Susan V. Hamilton, and Alfonso J. Moresi, Commissioners, WCAB No. STK 210450, Terre A. Sadosky, Workers’ Compensation Administrative Law Judge.
Law Offices of Mullen & Filippi and Paula E. White, for Petitioners.
No appearance by Respondent Workers’ Compensation Appeals Board.
Esequiel Solorio for Respondent Yvonne Slayton.
OPINION
Before Wiseman, Acting P.J., Dawson, J., Hill, J.
Costco Wholesale (Costco) petitions for a writ of review from a decision of the Workers’ Compensation Appeals Board (WCAB) claiming an injury sustained at the end of an employee’s shift while retrieving and completing a purchased item in the employer’s store did not arise out of and in the course of her employment. (Lab. Code, § 5950; Cal. Rules of Court, rule 8.495.) Finding the WCAB’s decision well supported by the evidence, we will deny the petition and grant the respondent’s request to remand the matter to the WCAB to award reasonable attorney fees associated with defending the petition for writ of review. (§ 5801.)
Further statutory references are to the Labor Code.
BACKGROUND
Yvonne Slayton has been employed by a Costco store in Modesto since early 2001. She worked full-time primarily in Costco’s deli department; however, she had also been trained in bakery procedures, and it was not unusual for her to cover a lunch or break shift in that department three or four times a week, whether at the direction of a floor manager or on her own initiative as needed.
Slayton was scheduled to work at Costco on Saturday, July 15, 2006, from 10 a.m. until “approximately 2:30 p.m.” Later that day, three employees were working in the deli department and only one was working in the bakery. It was Costco’s policy that its employees were not allowed to make purchases during their shift except while on breaks or lunch, but according to Slayton and three other Costco staff members it was common practice for employees and even managers to set aside items during work hours they intended to purchase. While on her afternoon break, about 1:45 p.m., Slayton paid for a cake that her sister had ordered. Around 2:10, Slayton realized she had finished her duties for the day with approximately 20 minutes remaining in her shift and she decided to go home early, telling her coworker, Josh, that she was going get her cake and come back.
Slayton went to the bakery department and discovered the cake her sister had ordered was not on the customer pickup racks. The lone bakery worker had four customers waiting so Slayton proceeded behind the counter to the refrigerated area to search for the cake, which had not yet been wrapped or labeled, with the intention of packaging it herself. With the cake in hand, Slayton fell to the ground on her right knee with her left knee landing in a mixing bowl. The bakery employee heard the fall and helped her up, and she told a couple of employees what happened before going home.
Slayton was able to work the next day and on Monday reported the injury to a store manager who told her to see a doctor. In March 2007, Slayton underwent right knee surgery as a result of the fall, but Costco denied reimbursement as a nonindustrial injury. Although he was not her supervisor at the time, Slayton’s current deli manager, Kenneth Weldon, opined her picking up the cake was a violation of Costco’s rules even though she was not reprimanded in any way in regards to the event.
The matter proceeded to a hearing with testimony from Slayton and several Costco employees on the limited issue of determining whether the facts presented a covered workers’ compensation injury. The workers’ compensation administrative law judge (WCJ) issued a finding concluding the injury arose out of and in the course of employment and was therefore compensable. The WCAB subsequently summarily denied Costco’s petition for reconsideration, adopting and incorporating the reasoning from the WCJ’s report and recommendation.
DISCUSSION
An employer is liable for workers’ compensation benefits only where an employee sustains an injury “arising out of and in the course of the employment .…” (§ 3600, subd. (a).) “‘This two-pronged requirement is the cornerstone of the workers’ compensation system.’” (LaTourette v. Workers’ Comp. Appeals Bd. (1998) 17 Cal.4th 644, 650 (LaTourette).) The burden of proving that an injury arose out of and in the course of employment falls on the employee and generally presents a question of fact to be determined in light of the circumstances. (Pettigrew v. Workers’ Comp. Appeals Bd. (2006) 143 Cal.App.4th 397, 405.) However, the burden of proof shifts to the employer to disprove an employment relationship once a claimant demonstrates she was “actually performing service for the alleged employer” at the time of the injury. (§ 5705, subd. (a).) “In resolving this issue, we are guided by the Legislature’s command in section 3202 that workers’ compensation laws ‘be liberally construed by the courts with the purpose of extending their benefits for the protection of persons injured in the course of their employment.’” (Wright v. Beverly Fabrics, Inc. (2002) 95 Cal.App.4th 346, 353.) Yet the finding must still be supported by the preponderance of the evidence, which “means that evidence that, when weighed with that opposed to it, has more convincing force and the greater probability of truth.” (§ 3202.5)
An injury arises out of the employment when there is a causal link between the injury and the job. (LaTourette, supra, 17 Cal.4th at p. 651.) In other words, the injury must have been sustained while performing an act reasonably contemplated by the employment, given the nature, custom, and usage of the particular employment relationship. (Ibid.)
Occurring in the course of the employment ordinarily refers to the time, place, and circumstances of an injury. (LaTourette, supra, 17 Cal.4th at p. 651.) “‘Thus, “‘[a]n employee is in the “course of his employment” when he does those reasonable things which his contract with his employment expressly or impliedly permits him to do.’”’” (Ibid.) Similarly, “‘an employee acts within the course of his employment when “‘performing a duty imposed upon him by his employer and one necessary to perform before the terms of the contract [are] mutually satisfied.’”’” (Ibid.) “The rationale is that the employee is still acting in furtherance of the employer’s business.” (Wright v. Beverly Fabrics, Inc., supra, 95 Cal.App.4th at p. 354.) “The combination of a personal act performed outside of regular working hours with the performance of acts in furtherance of the employer’s business does not defeat a finding that the employee was acting in the course of his or her employment.” (Id. at pp. 354-355.)
Costco concedes Slayton’s injury arguably arose out of her employment when she fell and injured her knee, but disputes that she was acting in the course of her employment and therefore believes the WCAB should have reversed the WCJ’s finding of a compensable injury. Costco reasons that Slayton was not acting in furtherance of a valid business activity because she “chose to purchase and pick up the cake as a favor [to] her sister on the date of injury of July 15, 2006.” Costco points to Slayton’s job title as that of a deli service worker to suggest she was working outside of her assigned working area and without the express approval from a manager to be in the bakery. Moreover, Costco contends that Slayton had effectively ended the employment relationship at the time of her injury because she had decided to leave 20 minutes before her shift ended. Costco’s attempt to place blame on Slayton is unavailing, given that California’s workers’ compensation system is not based on fault. (Cal. Const., art. XIV, § 4.)
Although Costco suggests Slayton was acting exclusively in her own self-interest and not that of the store, we agree with the WCAB that Slayton’s injury both arose out of and in the course of her employment. Slayton’s injury occurred on Costco’s premises during her regularly scheduled shift, with no indication in the record that Slayton had formally clocked out. To the contrary, Slayton testified that 20 minutes before the end of her shift, she had finished her duties and decided to go home early but that she told a deli department coworker, “I’ll be right back. I’m going to get the cake.” Several Costco employees and a manager testified that it was common practice for employees to set aside items in the store for personal reasons during working hours. Thus, while Slayton may have intended to leave shortly thereafter, substantial evidence supports the WCAB’s determination that she had not yet abandoned her shift and was instead merely setting aside the cake by retrieving it from the bakery.
Slayton did more, however, than merely retrieve a cake from the bakery department to further suggest she was acting in furtherance of Costco’s business activities. As permitted, Slayton first paid for the cake during her break, providing a financial benefit to the store. When the cake was not ready, and seeing that the bakery was understaffed, she proceeded to finish packaging the cake herself as she had been trained to do and had performed before on many occasions, both with and without management’s express approval. While perhaps personally motivated to help her sister with purchasing the cake, Slayton was simultaneously furthering Costco’s business activities, which included producing, packaging, and selling cakes. If Slayton had not retrieved the cake herself, another staff member would have been needed to perform the task. Under the circumstances, it was not unreasonable for Slayton to finish the job herself, especially after she had already completed her assigned duties in the deli department. While management might have preferred Slayton to have instead assisted waiting customers, she chose to assist the bakery department by retrieving and packaging her own cake. Costco admits to this court that an act of personal convenience occurs in the course of employment so long as it is reasonably contemplated and provides some benefit, no matter how minimal, to the employer. Similarly, under the “‘dual purpose’” doctrine, “‘where the employee is combining his own business with that of his employer, or attending to both at substantially the same time, no nice inquiry will be made as to which business he was actually engaged in at the time of injury, unless it clearly appears that neither directly or indirectly could he have been serving his employer.’” (Price v. Workers’ Comp. Appeals Bd. (1984) 37 Cal.3d 559, 569.) We disagree with Costco’s assessment that by packaging the cake herself, Slayton was not also providing a business-related service to the store. Accordingly, we must agree with the WCAB that Costco’s injury arose out of and in the course of her employment.
DISPOSITION
The petition for writ of review is denied.
Finding the WCAB’s decision well supported by the evidence, we grant respondent Slayton’s request to remand the matter to the WCAB to issue an award of reasonable attorney fees in connection with answering the petition for writ of review. (§ 5801; Crown Appliance v. Workers’ Comp. Appeals Bd. (2004) 115 Cal.App.4th 620, 627-628.)
This opinion is final forthwith as to this court.