ABTL Report - Fall 2026 Edition - Flipbook - Page 7
ABTL - Los Angeles
Fall 2026
The injury must be an incident of employment to qualify as
“arising out of” the employment.
Overview of the Workers’ Compensation System...continued from Page 6
III. For the Act to apply to a workplace injury, the parties
must be subject to the Act and the injury must arise out of
and in the course of the employment.
The second condition of compensation has two requirements,
the injury must “aris[e] out of” and occur “in the course of”
the employment (workers’ compensation practitioners often
refer to this statutory requirement by the shorthand of “AOE/
COE”). (Lee v. West Kern Water Dist. (2016) 5 Cal.App.5th
606, 624.) “Arising out of” typically refers to the origin of the
injury and the causal element. (Scott v. Paci昀椀c Coast Borax Co.
(1956) 140 Cal.App.2d 173, 178; see Maher v. Workers’ Comp.
Appeals Bd. (1983) 33 Cal.3d 729, 733–734.) It must “ ‘occur
by reason of a condition or incident of [the] employment.’ ”
(Sunderland v. Lockheed Martin Aeronautical Systems Support
Co. (2005) 130 Cal.App.4th 1, 9.) The injury must be linked
to the employment in a causal way. (Ibid.) This requirement is
not the same as the causation standard required in tort. (South
Coast Framing, Inc. v. Workers’ Comp. Appeals Bd. (2015) 61
Cal.4th 291, 297–300.) It is suf昀椀cient if the employment is a
contributing cause without which the injury would not have
occurred. (Weber v. United Parcel Service, Inc. (2003) 107
Cal.App.4th 801, 806.)
For an injury to be subject to the Act, an employer-employee
relationship must exist.
For an injury to be subject to the Act, an employer-employee
relationship must exist. Most persons “in the service of
an employer under any . . . contract of hire” are considered
employees, excluding those found to be independent
contractors. (Lara v. Workers’ Comp. Appeals Bd. (2010) 182
Cal.App.4th 393, 398, internal quotation marks omitted.) In
S. G. Borello & Sons, Inc. v. Department of Industrial Relations
(1989) 48 Cal.3d 341 (Borello), the California Supreme Court
stated the test of whether an employment relationship exists is
“ ‘whether the person to whom the service is rendered has the
right to control the manner and means of accomplishing the
result desired.’ ” (Id. at p. 350; People v. Czirban (2021) 67
Cal.App.5th 1073, 1092–1093.) Although this is the principal
test, other factors also are relevant to whether a person is an
employee or independent contractor. These include whether
the type of work is typically done under direction of the
principal, the principal provides the tools, the length of time
the services are to be performed, and whether the payment is
by time (indicating the claimant is an employee) or by the job
(indicating independent contractor status). (Borello, at p. 350.)
The injury must be an outgrowth of the employment to
“occur in the course of the employment.”
The requirement that an injury occurs “in the course of
employment” refers to the time, place, and circumstances of
the injury. (State Compensation Ins. Fund v. Workers’ Comp.
Appeals Bd. (1982) 133 Cal.App.3d 643, 652.) For this
requirement to be satis昀椀ed, at the time of injury the employee
must be engaged in an action that is an “outgrowth” of the
employment and “the risk of injury must be inherent in the
workplace, or typical of or broadly incidental to the employer’s
enterprise.” (Torres v. Parkhouse Tire Service, Inc. (2001) 26
Cal.4th 995, 1008.) The employee must be generally engaged
in the type of work he or she was hired to perform. (GeorgiaPaci昀椀c Corp. v. Workers’ Comp. Appeals Bd. (1983) 144 Cal.
App.3d 72, 75.)
In Dynamex Operations W. v. Superior Court (2018) 4
Cal.5th 903, the California Supreme Court used the “suffer or
permit to work” test—the so-called ABC test—to determine
whether a person is an independent contractor or an employee.
That test is applied in claims under California’s Industrial
Welfare Commission Wage Orders. (Becerra v. McClatchy
Co. (2021) 69 Cal.App.5th 913, 946.) In 2020, the Legislature
adopted the “ABC” standard for purposes of the entire Labor
Code. (Lab. Code, § 2775.) However, there are carveouts for
portions of the Code—such as those pertaining to workers’
compensation—that have their own de昀椀nitions of employee
and independent contractor. (Lab. Code, § 2775, subd. (b)(2);
id., §§ 3351 [de昀椀ning employee], 3353 [de昀椀ning independent
contractor].) The factors set forth in Borello therefore continue
to be used to determine whether a person is an independent
contractor or an employee within the workers’ compensation
context. (See, e.g., Becerra, at p. 946.)
Importantly, despite the similarity of language, the Act’s
“course of employment” requirement for an employee’s injury
is not coterminous with the similarly worded common law
test for respondeat superior liability. Under that test, for an
employer to be liable for an employee’s tort, the employee’s
tortious conduct must occur in “the course and scope of
employment.” (Hinman v. Westinghouse Elec. Co. (1970) 2
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