ABTL Report - Fall 2026 Edition - Flipbook - Page 15
ABTL - Los Angeles
Fall 2026
Overview of the Workers’ Compensation System...continued from Page 14
very much to the advantage of the employer for the bus driver
to refresh herself with a cup of coffee at 1:45 a.m.” (Id. at p.
520.)
the scope of employment. (Hinman, supra, 2 Cal.3d at p. 961.)
The “going and coming” rule applies differently in that context.
(Id. at p. 962, fn. 3.) For example, in Anderson v. Paci昀椀c Gas
& Electric Co. (1993) 14 Cal.App.4th 254, an employee was
returning home from work when he struck the plaintiff with his
car. (Id. at p. 257.) The court held the employee was not acting
within the scope of employment when the accident occurred.
(Id. at p. 256.) Thus, the employer was not vicariously liable
for the tort under the doctrine of respondeat superior. (Ibid.)
However, because the employer paid the employee per diem
travel expenses, the employee was able to recover workers’
compensation bene昀椀ts under the “travel expense” exception.
(Id. at pp. 259–260, 263.)
That said, an employee’s actions do not occur in the course
of employment when the actions violate the employer’s
instructions or are outside the employee’s duties. (National
Auto Ins. Co. v. Industrial Acc. Commission of Cal. (1937) 8
Cal.2d 715, 718.) For example in National Auto, an employee
was told to wait inside the store when he arrived to work in the
morning. (Id. at p. 716.) Instead of following those instructions,
he went out to look for his employer and was injured. (Ibid.)
The court held his injuries were not sustained in the course
of employment because he violated express instructions to
stay inside the store. (Id. at pp. 718–719.) In this area, courts
recognize a distinction between “an unauthorized departure
from the course of employment” and the “performance of
a duty in an unauthorized manner.” (Paci昀椀c Tel. & Tel. Co.
v. Workers’ Comp. Appeals Bd. (1980) 112 Cal.App.3d 241,
245.) When an employee performs a work-related duty in an
unauthorized manner, the injury is still considered within the
course of employment. (Ibid.)
Actions that do not bene昀椀t the employer are generally
outside the “course of employment.”
An employee’s actions do not occur in the course of
employment when the activity is personal in nature and does
not yield any bene昀椀t to the employer. (Hinkle v. Workers’ Comp.
Appeals Bd. (1985) 175 Cal.App.3d 587, 591, disapproved on
other grounds in Camper v. Workers’ Comp. Appeals Bd. (1992)
3 Cal.4th 679, 690.) In Fireman’s Fund Indem. Co. v. Industrial
Acc. Commission (1952) 39 Cal.2d 529, the employee was a
cook and housekeeper in the employer’s home, but lived in
the home. (Id. at p. 530.) One evening, after completing her
duties, the employee took a walk and fell. (Id. at p. 531.) Her
injury from this fall was determined not to be in the “course of
employment” because it was an “act of recreational diversion
of her own free choice.” (Id. at p. 535.)
In addition, an injury is considered to have occurred in the
course of employment when the action was outside of the
employee’s regular duties but was requested by the employer.
(Eckis v. Sea World Corp. (1976) 64 Cal.App.3d 1, 5.) In Eckis,
an employee was injured while riding a killer whale. (Ibid.)
Although this was not within her regular duties, the injury was
compensable under the Act because her employer requested
her to ride the whale for publicity pictures. (Ibid.)
Certain personal acts may be compensable under the Act,
however, through the “personal comfort” doctrine.” (Mason
v. Lake Dolores Group (2004) 117 Cal.App.4th 822, 838.)
Under this doctrine certain acts are considered in the course
of employment even though they are personal to the employee
because they improve the employee’s ef昀椀ciency and therefore
bene昀椀t the employer. (Ibid.) In Western Greyhound Lines v.
Industrial Acc. Commission (1964) 225 Cal.App.2d 517, for
example, while on a short break in the middle of a 12-hour
shift, a bus driver was injured by a third party tortfeasor when
she went into a restaurant across the street from the employer’s
premises to have some coffee. (Id. at pp. 518–519.) The court
held the employee’s injury was compensable under the Act
because the employee was getting paid during this break, the
continuity of employment was not interrupted, and “it was
IV. If conditions to compensation are not met or the
injury is statutorily excluded, the injury does not fall under
the Act.
Injuries where the conditions of compensation are not met
are excluded from the Act.
Provided that some basis of tort liability can be shown, an
employee may bring a tort action against his or her employer if
the conditions of compensation are not met, e.g., if the injury
does not arise out of or occur in the course of employment.
(2 Witkin, Summary of Cal. Law (11th ed. 2026) Workers’
Compensation, § 60.)
Importantly, and rather obviously, if the employee’s on-theContinued on Page 16
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